DJ v Director of Public Prosecutions for Western Australia
[2022] WASC 303
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DJ -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2022] WASC 303
CORAM: SMITH J
HEARD: 25 JULY 2022
DELIVERED : 13 SEPTEMBER 2022
FILE NO/S: SJA 1035 of 2022
BETWEEN: DJ
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1035 of 2022
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE P HOGAN
File Number : AR 119 of 2021
BM 594 of 2019
BM 735 of 2019
BM 738 of 2019
FZ 33-34 of 2021
FZ 36-37 of 2021
KH 451-453 of 2020
KH 460-461 of 2020
Catchwords:
Criminal law - Appeal against decision to dismiss application made for a declaration declaring convictions expired for all purposes except for the purposes of s 189 pursuant to s 189 of the Young Offenders Act 1994 (WA) - Purpose and scope of s 189 considered - Meaning of words 'special circumstances' - 'Special circumstances' not confined to circumstances for the purposes of rehabilitation - Conditions for the exercise of the power in s 189 considered - 'Reason' for the application and the 'purpose' of the application considered - Purpose of s 189(2) and s 189(3) is not restricted to rehabilitation - Whether a subsequent application can be brought in respect of a conviction or convictions the subject of a prior failed application considered - Doctrines of res judicata, estoppel and abuse of process considered
Legislation:
Young Offenders Act 1994 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Application for judicial review dismissed
Category: A
Representation:
Counsel:
| Appellant | : | W Yoo & R Napper |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Aboriginal Legal Service - Perth |
| Respondent | : | The Director of Public Prosecutions for The State of Western Australia |
Case(s) referred to in decision(s):
B (a child) v Hepple [2013] WASC 303; (2013) 233 A Crim R 436
Bennett v The State of Western Australia [2012] WASCA 70
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
D v Edgar [2019] WASC 183
DLD (a child) v The State of Western Australia [2018] WACC 4
GNR v The State of Western Australia [2015] WASCA 5
Hall v R [2015] NSWCCA 298
Hamersley Iron Pty Ltd v National Competition Council [2008] FCA 598; (2008) 247 ALR 385
Harris v The State of Western Australia [2005] WASCA 147
Jacob v Save Beeliar Wetlands [2016] WASCA 126
Lee Suarez v Cutler [2012] WASC 171
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Ninyette v Holmes [2015] WASC 287
P (A Child) (1997) 94 A Crim R 593
Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v MacKay (Unreported, CCA SCt of WA, Library No 970689, 18 November and 10 December 1997)
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Roberts v The State of Western Australia [2014] WASCA 239
Sharpe v Vinning [2020] WASCA 79
Tomlinson v Ramsey Food Processing [2015] HCA 28; (2015) 256 CLR 507
United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165
Table of Contents
1.0 The appeal, the grounds of appeal, and the result
2.0 Section 189 of the Young Offenders Act 1994 (WA)
3.0 The application for a declaration the subject of the appeal and an earlier application for a declaration in respect of some of the same convictions
3.1 The application dated 2 February 2022 for a declaration pursuant to s 189(3) of the Young Offenders Act, and the appellant's criminal history of convictions
3.2 Prior application for a declaration pursuant to s 189(3) of the Young Offenders Act
3.3 The application for a declaration that is the subject of the appeal
3.3.1 The submissions made on behalf of the appellant
3.3.2 The magistrate's reasons for decision
4.0 The proper construction of s 189 of the Young Offenders Act
4.1 What can be drawn from the meaning of the words 'special circumstances' in other statutory contexts
4.2 The approach in B (a child) v Hepple
4.3 The approach in D v Edgar
4.4 Can the Edgar test and the Hepple test be reconciled?
4.5 Whether a subsequent application can be brought under s 189(3) in respect of convictions that have been the subject of a prior failed application
5.0 The magistrate's reasons for decision – is error established?
SMITH J:
1.0 The appeal, the grounds of appeal, and the result
This is an application for leave to appeal against a decision made on 3 March 2022 by a Children's Court Magistrate dismissing an application, pursuant to s 189(3) of the Young Offenders Act 1994 (WA), for a declaration declaring that specified convictions are not to be regarded as convictions for any purpose, except as provided for in s 189 of the Young Offenders Act.
The appellant seeks an order setting aside the decision to dismiss the application, and the making of the declaration sought at first instance.
Pursuant to s 6(f) and s 7(1) of the Criminal Appeals Act 2004 (WA), an appeal may be made by a person who is aggrieved by a refusal to make an order that might be made as a result of a conviction or acquittal of a court of summary jurisdiction.
The amended grounds of appeal can be distilled as follows:
Ground 1
(1)The learned magistrate erred in law in the exercise of discretion under s 189(3) of the Young Offenders Act, and erred in finding what constituted 'special circumstances' within the meaning of s 189(3):
Particulars
(a)the learned magistrate disregarded materials which were produced by affidavit evidence dated 7 February 2022:
(i)which addressed the special circumstances said to arise out of the appellant's age, maturity, and cultural background;[1]
[1] ts 13 ‑ 14, 3 March 2022 and ts 10 ‑ 12, 14 October 2021.
(ii)because of his Honour's view that there was a tendency to conflate applications under s 189 with a sentencing exercise;
(b)contrary to the express statutory criteria relevant to the exercise of the discretion provided for under s 189(3) and s 7(l) of the Young Offenders Act; and
(c)ignored factors which were relevant to 'special circumstances', which were the appellant's age and maturity, cultural background, and time spent in custody.
Ground 2
(2)The decision to refuse a declaration was plainly unreasonable and unjust which produced a substantial wrong having regard to the appellant's circumstances.
Ground 3
(3)Pursuant to s 36(4) and s 36(6) of the Magistrates Court Act 2004 (WA) and s 4(1)(b) of the Children's Court Act of Western Australia 1988 (WA) (Children's Court Act), the learned magistrate's refusal to grant a declaration was so unreasonable that no reasonable decision maker could have made it, on grounds that the decision was occasioned by a jurisdictional error because of the incorrect exercise of the statutory criteria under s 189 of the Young Offenders Act.
The appellant's grounds of appeal raise issues as to whether errors of law have been made and whether the decision to dismiss the application was unreasonable.
Pursuant to the Magistrates Court Act ss 36(6) and 36(4) and the Children's Court Act s 4(1)(b), judicial review of the learned magistrate's decision is sought. Magistrate Hogan's decision was so unreasonable that no reasonable decision maker could have made it.
A decision maker may fall into jurisdictional error by making an unreasonable decision in the exercise of statutory discretion. There are two categories of legal unreasonableness. The first category is those cases in which the reviewing court identifies an underlying jurisdictional error in the decision making process (process unreasonableness), and the second category are those cases in which legal unreasonableness may be outcome focused (outcome unreasonableness).
Process unreasonableness encompasses errors in decision making, such as disregard of relevant considerations, consideration of irrelevant considerations, attaching disproportionate weight to some factor and a lack of proportionality. In addition, process unreasonableness also encompasses errors by reference to the scope and purpose of a statute in the reasoning by a decision maker.[2]
[2] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 352 [72] ‑ [74] (Hayne, Kiefel & Bell JJ).
The difference between process unreasonableness and outcome unreasonableness was explained by McLure P in Jacob v Save Beeliar Wetlands. Her Honour explained:[3]
The head note in Li appears to accurately capture the position of the plurality, being that:
'The legal standard of unreasonableness is not limited to a decision so unreasonable that no reasonable person could have arrived at it. The standard is addressed to whether the statutory power, on its true construction, has been abused. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.'
It is clear from the judgment of the plurality and of French CJ and Gageler J, that a discretionary decision infected by 'irrationality grounds' such as, inter alia, the failure to take into account relevant considerations, taking into account irrelevant considerations, improper purpose, and serious irrationality in the sense used in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 625, 643 and 648, is legally unreasonable. These are process-related examples of legal unreasonableness. Otherwise, unreasonableness in the Li sense is 'outcome' focused. That is, legal reasonableness provides the boundaries of the area within which a decision-maker has a genuinely free discretion: Li [66]. To determine the boundary, regard must be had to the scope, subject matter and purpose of the statutory discretionary power: Li [67].
[3] Jacob v Save Beeliar Wetlands [2016] WASCA 126 [67] ‑ [68] (with whom Buss JA agreed).
It is apparent from the issue raised in ground 3 that the appellant seeks to raise an argument that alleges process unreasonableness.
However, as the respondent points out, there is little difference between the argument put to the court in ground 2 and ground 3. In Minister for Immigration v Li, the plurality observed that the same reasoning in House v The King, that an appellate court may infer that in some way there has been a failure to properly exercise the discretion if upon the facts the result is unreasonable or plainly unjust, might apply to the review of the exercise of a statutory discretion where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.[4]
[4] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 352 [76] (Hayne, Kiefel & Bell JJ).
If the appellant is able to make out his ground of judicial review, he seeks an order that the refusal (the dismissal of the application) for a declaration be set aside and a declaration made on the terms sought at first instance, pursuant to s 189(3) of the Young Offenders Act.
In respect of grounds 1 and 2 of the appeal, leave of the court is required for each ground of appeal.[5] Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding.[6]
[5] Criminal Appeals Act 2004 (WA) s 9(1).
[6] Criminal Appeals Act 2004 (WA) s 9(2).
This means that the ground is required to have a rational and logical prospect of succeeding, in that it would not be irrational, fanciful or absurd to envisage it succeeding, or in effect that it has a real prospect of success.
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
Success on any ground will not necessarily result in the setting aside of the decision, if the court considers that no substantial miscarriage of justice has occurred,[7] because not all errors of law enliven this court's jurisdiction. Generally, an immaterial or inconsequential error will not give rise to a substantial miscarriage of justice.[8] Where an error could not have affected the outcome, an appeal court will generally be able to conclude that there has been no substantial miscarriage of justice.[9]
[7] Criminal Appeals Act 2004 (WA) s 14(2).
[8] Roberts v The State of Western Australia [2014] WASCA 239 [47].
[9] Ninyette v Holmes [2015] WASC 287 [65].
For the reasons that follow, I am of the opinion that:
(a)although the learned magistrate made errors of law, leave to appeal on grounds 1 and 2 of the appeal should be refused because none of the errors can be found to be material to the grounds of appeal and no substantial miscarriage of justice can be found to have occurred;
(b)the application for judicial review raised in ground 3 should be refused; and
(c)the appeal should be dismissed on grounds that no substantial miscarriage of justice has occurred.
2.0 Section 189 of the Young Offenders Act 1994 (WA)
Section 189 provides a benefit to a young offender by limiting the consequences of the fact of certain convictions by limiting the effect of those convictions to a two year period, and allowing for an application for the abridgement of the two year period where a court is satisfied that 'special circumstances' exist.
Section 189 provides as follows:
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 High Risk Serious Offenders Act 2020 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.
The disposition of the appeal in this matter turns upon the proper construction of s 189(3) when read in the context of s 189(1) and (2) and together with the context and purpose of the whole of the Young Offenders Act.
The central issues in the appeal are what is the meaning of the words 'special circumstances' in s 189(3), and whether more than one application by an offender can be made that relates to the same conviction or convictions.
3.0 The application for a declaration the subject of the appeal and an earlier application for a declaration in respect of some of the same convictions
3.1 The application dated 2 February 2022 for a declaration pursuant to s 189(3) of the Young Offenders Act, and the appellant's criminal history of convictions
The appellant has a lengthy criminal history of convictions for criminal and traffic offences in the Children's Court, which resulted in sentences of detention and more recently imprisonment.
As at the date of the hearing of the application, the appellant was 19 years old, and had a history of a relatively large number of unexpired convictions, seven of which were home burglary convictions.
The application dated 2 February 2022 sought a declaration pursuant to s 189(3), that seven home burglary convictions be declared as expired pursuant to s 189(2), but did not seek declarations in respect of any other unexpired convictions.
The seven home burglary convictions were as follows:
Charge Number
Offence and date
Date no longer regarded as conviction under s 189(2)
Age at the time of the offence
CCBM 594/2019 Aggravated Home Burglary 4 November 2019 7 January 2023 16 years old CCBM 735/2019 Home burglary and commit 1 November 2019 7 January 2023 16 years old CCBM 738/2019 Home burglary and commit an offence 3 November 2019 7 January 2023 16 years old CCKH 451/2020 Aggravated home burglary 14 November 2020 16 July 2024 17 years old CCKH 461/2020 Home burglary with intent 26 November 2020 16 July 2024 17 years old CCFZ 34/2021 Aggravated home burglary and commit 3 February 2021 16 July 2024 17 years old CCFZ 37/2021 Aggravated home burglary and commit 3 February 2021 16 July 2024 17 years old
The appellant was sentenced on 8 September 2020 for each of the first three burglary offences committed in November 2019, by the Children's Court sitting at Fitzroy Crossing. The appellant was sentenced for the remaining four home burglary offences committed in November 2020 and February 2021 by the President of the Children's Court, Quail P, on 4 November 2021.
At the time of the application, other convictions which had not expired at the time the application for a declaration, heard by Magistrate Hogan on 3 March 2022, included:
(a)five convictions, being one count of assault public officer, one count of criminal damage, and three counts of steal a motor vehicle. In respect of each count, concurrent periods of detention were imposed on 8 September 2020 resulting in an effective detention period of 4 months;
(b)twelve convictions, being one count of assault public officer, one count of criminal damage, one count of escape lawful custody, three counts of steal motor vehicle, one count of stealing, three counts of trespass, one count of no authority to drive (disqualified) and one count of no authority to drive (license never held). Sentences of concurrent periods of immediate imprisonment of one and two months were imposed on 4 November 2021 for the first six counts, concurrent with the sentences on the home burglary charges which were the subject of the applications for a declaration, and fines were imposed for the remaining offences.
3.2 Prior application for a declaration pursuant to s 189(3) of the Young Offenders Act
Prior to being sentenced by Quail P on 4 November 2021, an application dated 30 September 2021 was lodged in the Children's Court at Perth seeking a declaration, pursuant to s 189(2) of the Young Offenders Act, that the three home burglary convictions the appellant received terms of detention by the Children's Court at Fitzroy Crossing on 8 September 2020 be deemed not to be convictions for any purpose except for the purposes of s 189.
Although there is no appeal against the decision to dismiss the first application, it is relevant to consider what was put before the court in support of the first application because:
(a)some of the facts and circumstances relied upon by the appellant as special circumstances in the first application were also raised in support of the second application;
(b)the learned magistrate who heard the first application was the same judicial officer who heard the second application, and the reasons given as grounds for dismissing the second application are in part related and are to be understood in light of the reasons given for dismissing the first application; and
(c)the character of the matters raised in the first application go to whether the principle of finality of litigation, and doctrine of res judicata, prohibit the appellant from seeking a declaration in the second application in respect of the three home burglary convictions which were the subject of the first application.
Written submissions filed in support of the first application indicated that the appellant was due to be sentenced with a written presentence report by Quail P on 22 October 2021 for four home burglary offences. However, the application does not appear to have been referred to Quail P to be listed for hearing at the same time as the sentencing hearing.
Instead, the application was listed for hearing before Magistrate Hogan on 14 October 2021.
Although counsel who appeared on behalf of the Director of Public Prosecutions for the State at the hearing of the first application made a submission that the State's position was that the application should be heard by the sentencing judicial officer, his Honour disagreed and expressed the opinion that the discretion conferred by s 189(3) must be dealt with separately from the exercise of sentencing.
The learned magistrate was correct to observe that the discretion conferred by s 189(3) is separate to the exercise of the discretionary powers to sentence an offender by the application of relevant statutory provisions and applicable sentencing principles. However, for the reasons below in [37] ‑ [39], 4.0 to 4.5 and 5.0, I do not agree that the first application should have been heard and determined separately and prior to the sentencing for the subsequent home burglary offences.
The factual circumstances relied upon by the appellant in the first application were set out in a supporting affidavit of Sally Nicole Oliver sworn on 30 September 2021.
In the supporting affidavit and in counsel's oral submissions at the hearing of the first application, the circumstances relied upon as 'special circumstances' within the meaning of s 189(3) were identified as follows:
(a)the appellant had spent 240 days on remand in Casuarina Prison, in respect of the home burglary and other offences for which he was to be sentenced by Quail P, and this was the first time he had been remanded in custody in an adult prison;
(b)the appellant was originally from the Kimberley, was 'off country' and because of his incarceration he had been away from his family for a significantly long period;
(c)a neuropsychological report obtained from a psychologist in 2018 reported that the appellant has a significant cognitive disability and is eligible to make an application to receive support through the National Disability Insurance Scheme (NDIS). In addition, a disability service operator at Casuarina Prison had indicated they were pursuing an application for NDIS funding for support to be provided to the appellant, and a Disability Justice Prevention and Diversion Officer had stated that given the appellant's level of cognitive disability (outlined in the neuropsychological report) he was eligible for assistance by this service;
(d)the author of the neuropsychological report was of the opinion that the neuropsychological assessment results indicated that the appellant would likely meet the diagnostic criteria for FASD for four neurocognitive domains: cognition, attention, executive functioning, including hyperactivity and impulse control, and memory. However, the diagnosis could not be formally made because pre-natal exposure from the appellant's mother could not be confirmed;
(e)the appellant is the youngest of seven children. His parents relationship was marred by significant domestic violence and ended when he was two years old. He was subsequently placed with different family members in Derby, Broome, Fitzroy Crossing and Halls Creek;
(f)the appellant was accepted into full-time boarding at Yiramalay School in April 2017 and he attended that school until he was remanded in custody in July 2017. The executive director of the school reported that the appellant's behaviour was rated as either outstanding or not acceptable. Sources indicate that the appellant's education abilities were below his age due to inconsistent schooling, but that he had demonstrated positive behaviours in the classroom, and had shown interest to participate, learn and further his education;
(g)the appellant had been molested when he was about 6 or 7 years of age by two 10 year old boys; and
(h)the appellant would like to return to Karratha to live with his older sister, who is very supportive of him, and he was soon to get a job there 'as things were looking quite good for him' when he was on home detention in Karratha.
After hearing submissions made by the appellant's counsel, his Honour dismissed the first application on grounds that the purpose of s 189(2) and s 189(3) is to provide for rehabilitation, and that on the material before him he was not satisfied that the appellant wanted to obtain the declaration so that he could rehabilitate himself.[10]
[10] On 22 October 2021, the appellant appeared before Quail P. At that hearing his Honour noted that pleas of guilty had been entered to all of the charges and indicated that a large amount of material relevant to the sentencing process had been received by the court that morning but his Honour had not had an opportunity to read that material and stated that he intended to adjourn sentencing to 4 November 2021 so as to allow a sufficient period of time to read the material and take the matters stated in the reports into account before sentencing the appellant. During the course of the hearing his Honour asked counsel for the appellant whether the appellant was a third striker. Counsel for the appellant stated in the reply that he was a third striker and that an application had been made for a declaration under s 189(3) which was dismissed by Magistrate Hogan on 14 October 2021, and that it was her view that his Honour did not have the ability to reconsider that application. In response, Quail P did not indicate whether he had jurisdiction to do so and simply stated that on the basis of what he had read 'he wouldn't'.
Although in some matters it would be appropriate to deal with a s 189(3) application separate to any sentencing exercise, this was not such a case. This is because the reason why the first application was made was to avoid mandatory terms of imprisonment at the upcoming sentencing hearing. The appellant was to be sentenced by Quail P for home burglary offences that attracted mandatory periods of imprisonment because at the time of sentencing and at the time of the commission of the four home burglary offences the appellant was over the age of 16, and as such he was to be regarded as a repeat offender and subject to the nonsequential counting method of convictions for home burglary, pursuant to s 401A(1)(b)(iii)(I)-(III) of the Criminal Code.
There was a proper purpose for referring the application to Quail P for hearing and determination because if the application for a declaration abridging time for the expiration of the prior home burglary offences was successful on grounds that the appellant was able to satisfy the court that 'special circumstances' existed, he would not have been regarded as a repeat offender when sentenced. Whether the application should have been successful, or not, is not a matter that can be considered in this appeal.
Where an application is made for a declaration under s 189(3) and there is at the same time an upcoming sentencing hearing, there is likely to be, in most cases, a factual overlap in the facts that may ground the condition of 'special circumstances' for the exercise of the power conferred by s 189(3) and factual considerations that apply by the application of established sentencing principles to sentencing of offences. This is particularly so where the offences for which an offender is to be sentenced and the relevant convictions sought to be the subject of a s 189(3) declaration were offences against the same statutory provisions, and mandatory minimum sentences are required to be imposed because of the relevant prior convictions.
Although there is no appeal against the decision to dismiss the first application, this reasoning is repeated by his Honour in his reasons for dismissing the second application.
For the reasons I give below in 4.0 to 4.4 and 5.0 of these reasons, when text of s 189(3) is read together with s 189(2) when considered in its context so that these provisions are consistent with the language and purpose of all the provisions of the statute, the proper construction of the power to abridge time for the expiry of a conviction or convictions cannot be found to have one purpose only. Put another way, it is not the case that the only purpose of s 189(2) and s 189(3) is rehabilitation.
The general purpose and policy of these provisions must be read in context. When regard is had to the objectives and general principles of juvenile justice in s 6 and s 7 of the Young Offenders Act, the proper construction of s 189(2) and s 189(3) must be that the reason for the making of an application for a declaration under s 189(3) is consistent with the objectives and principles of the Young Offenders Act, which reason must necessarily be properly a call for an abridgement of time on grounds that 'special circumstances' exist.
A declaration made pursuant to s 189(3) could be made for a variety of reasons, and not just for the purpose of rehabilitation.
3.3 The application for a declaration that is the subject of the appeal
3.3.1 The submissions made on behalf of the appellant
A second application for a declaration pursuant to s 189(3) dated 2 February 2022 was lodged in the Children's Court. The second application was heard by Magistrate Hogan who had dismissed the first application on 14 October 2021.
This second application sought a declaration to abridge time in respect of each of the three home burglary convictions which had been the subject of the first application, together with the four home burglary convictions, in respect of which the appellant had been sentenced to mandatory terms of imprisonment as a repeat offender by Quail P on 4 November 2021.
In support of the application, an affidavit sworn by Ms Oliver on 7 February 2022, together with written submissions dated 2 February 2022, were lodged in the Children's Court. In her second affidavit, Ms Oliver repeated the matters set out in the affidavit that she had sworn in support of the first application. Ms Oliver also annexed to her second affidavit a copy of the 2018 neuropsychological report.
The written submissions filed in the Children's Court in support of the second application stated that the appellant had received an effective term of 17 months' immediate imprisonment when he was sentenced by Quail P on 4 November 2021, which included the terms of imprisonment for the four charges of home burglary.
The written submissions also set out the individual concurrent terms of immediate imprisonment that were imposed on the other charges, which are summarised in the table in [25] of these reasons.
The circumstances relied upon by the appellant in the second application, as special circumstances, included the matters raised in the first application.
When the second application was made and heard the appellant had recently been released from prison on parole.
At the commencement of the hearing of the second application on 3 March 2022, counsel for the appellant informed Magistrate Hogan that:
(a)the term of 17 months' imprisonment had been imposed by Quail P on 4 November 2021 had been backdated to 16 February 2021;
(b)the appellant had been released from custody on parole the previous week, which would have the effect that his period of parole would be complete by sometime in July 2022;
(c)the appellant was residing in Karratha with his sister; and
(d)the change of circumstances that allows the court to reconsider its decision given on the first application (in respect of three of the seven home burglary convictions) is that the appellant had been released to parole.
In response to the submission about a change of circumstances, his Honour stated that because s 189(3) is a discretionary provision there had not been judgment on the application of s 189(3) which could be found to be a final determination so as to invoke the principle of res judicata.
Although I do not agree with his Honour's reasoning on this point, for the reasons I give below in 4.5, I am of the opinion that a failed application for a declaration pursuant to s 189(3) does not prohibit a fresh application being made in the event that a subsequent application relies upon new or different circumstances that can properly be found to constitute 'special circumstances' within the meaning of s 189(3).
At the hearing of the application, counsel for the appellant then outlined the circumstances which the appellant claimed were special circumstances which should have compelled a declaration being made in respect of each of the seven convictions. The circumstances relied upon were the same as the matters raised in the first application together with additional circumstances which were submitted as matters going to the appellant's rehabilitation as follows:
(a)although no NDIS application had been made for support for the appellant's cognitive disability, now that he was in the community an application could be made;
(b)he has stable accommodation with his sister in Karratha, who is supportive of him;
(c)he is interested in finding gainful employment but needs some support in doing so; and
(d)if the convictions stand, and if he were to commit another home burglary as an adult, it would not be in the interests of his rehabilitation that he be sentenced to a minimum of two years or more of imprisonment.
3.3.2 The magistrate's reasons for decision
His Honour found there were seven applications for declarations under s 189(3), and ordered they all be heard and determined together. This was not procedurally correct as there was only one application which sought a declaration to be made in respect of seven convictions. This procedural point is not material because, if a declaration had been made, it would have been open to consider whether the declaration should apply to more than one conviction.
His Honour's findings in respect of an appropriate time to make an application for a declaration were as follows:[11]
(a)the appellant could make an application independent from any charge being laid against him for the commission of any new offence because an applicant is entitled to make an application at any time under s 189(3); and
(b)some decisions of the Children's Court and Supreme Court had taken a mistaken approach to whether a s 189(3) application should be determined when a judicial officer is called upon to sentence an offender.
[11] ts 10 ‑ 11, 3 March 2022.
His Honour made the following findings as to the merits of the application:[12]
[12] ts 11 ‑ 14, 3 March 2022.
(a)the appellant has not committed any offence or been convicted of any offence, and he is not about to be sentenced for any offence. He is now on parole and the four convictions for the burglary offences for which he is on parole will not expire, (pursuant to s 189(2)) until two years from (the date of expiry of his parole) 15 July 2024;
(b)the appellant is seeking a declaration for one purpose only, namely, to avoid any future operation of the mandatory sentencing provisions of the Criminal Code. An inference cannot be drawn that the appellant will commit a burglary offences in the future. (Consequently), an inference cannot be drawn that the mandatory provisions of the Criminal Code will apply to him;
(c)when regard is had to the scope and purpose of the Young Offenders Act, the discretion conferred by the use of the word 'may' in s 189(3) is not a discretion at large. The exercise of the discretion requires taking into account relevant considerations, and discounting irrelevant considerations;
(d)s 189(2) and s 189(3) are beneficial and remedial provisions in their effect, and should be interpreted as having as wide an operation as possible;
(e)the general principles to be observed in performing functions under the Young Offenders Act are set out in s 7. However, considerations that apply to the sentencing of offenders do not apply. Nor does the sentencing objective of rehabilitation arise because the appellant is not being sentenced;
(f)there is a rehabilitative purpose to s 189(2) and s 189(3) (which construction can be drawn from the following extrinsic material):
(i)in a 1986 Law Report Commission report, the authors stated that the object of the then proposed Spent Convictions Bill was:
(A)a person convicted of offences should necessarily not have to suffer the consequences for the rest of their lives, and it is unfair to continue to impose disabilities on persons convicted many years ago;
(B)the spent conviction scheme offers an incentive to convicted persons to become rehabilitated, and rewards them if they do so by limiting the effect of the old convictions;
(C)the community has an interest in just and fair treatment of citizens, the recognition in appropriate circumstances of rights of privacy and encouraging members to become rehabilitated; and
(D)the object of a spent conviction period (of 10 years where the Spent Convictions Act 1988 (WA) applies) is to show over comparatively long periods of time that the pattern of the convicted person's life has changed as evidenced by the absence of convictions;
(g)the appellant will have the benefit of s 189(2) at the end of 2 years no matter what he does or does not do. That is the purpose of s 189(2) (or what was formerly s 40 of the Child Welfare Act);
(h)the objective purpose of s 189(2) is to provide rehabilitation for offenders by removing the adverse effects of a conviction (after the expiration of two years from the date of the conviction), and by s 189(3) the time (for removal of the adverse effects) can be shortened;
(i)in order to satisfy (the requirements of) s 189(3) for a favourable exercise of discretion, an applicant has to demonstrate 'special circumstances'. '[S]pecial circumstances' can only be circumstances as to why the period should be shortened;
(j)the appellant has to demonstrate special circumstances. Those special circumstances can only be circumstances as to why the period should be shortened. Without limiting the generality of what considerations are relevant to special circumstances, in this matter, the applicant has to show some steps towards rehabilitation and some particular reason why his rehabilitation can be aided by removing the disability associated with the convictions, by shortening the period of expiry from two years;
(k)the affidavit material filed in support of the application in respect of what are said to be special circumstances do not in fact address any relevant criteria, and amount to no more than a plea of mitigation for an offence that has not been committed and for which there is no conviction or sentence;
(l)the appellant has not demonstrated any fact in his favour which would amount to a relevant consideration to be taken into account pursuant to s 189(3); and
(m)recourse to previous decisions of the Supreme Court on (the construction and effect of s 189(3)) are of no assistance for two reasons. First, no court has considered the purpose and effect of s 189(2). Second, the decisions that have considered (the construction and effect of s 189(3)) have been made in the context of an upcoming sentencing process which has 'nothing to do with' s 189(2).
4.0 The proper construction of s 189 of the Young Offenders Act
4.1 What can be drawn from the meaning of the words 'special circumstances' in other statutory contexts
In supplementary submissions filed on behalf of the appellant, counsel points out that research of interstate legislation indicates that no similar application process to shorten a waiting period to regard a conviction as spent on grounds of 'special circumstances' has been enacted in any other Australian jurisdiction.
It is, however, helpful to have regard to the meaning of the words 'special circumstances' in other legislative contexts.
In an application concerning the power of the High Court to grant bail as an incident of appellate jurisdiction following the arrest of persons under provisional warrants issued under the Extradition Act 1988 (Cth), the plurality considered the express power of the court to order the release of a person on bail if there were 'special circumstances' justifying such a course.[13]
[13] United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165.
Although the plurality considered in their judgment examples of specific circumstances which could be regarded as 'special circumstances' that justified release on bail of a person subject to extradition proceedings, which are not relevant to consider in this matter, their Honours found that there were two conditions that must be met. The first of these conditions could properly be found by analogy to condition the term 'special circumstances' in s 189(3). The second condition is not relevant as it related to an assessment of the risk of flight. The first condition found by their Honours was:[14]
First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute 'special circumstances', the matters relied on 'need to be extraordinary and not factors applicable to all defendants facing extradition'.
[14] United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 [61].
In Hall v R, in another context the term 'special circumstances' was considered in an appeal against a decision of a magistrate under the Criminal Appeals Act 1912 (NSW) to grant leave to a prosecutor to elect out of time to have certain offences dealt with on indictment, where the power to extend time was conferred if the court was satisfied that 'special circumstances' existed.[15] In Hall v R, Johnson J observed that the focus of attention (by the court that 'special circumstances' exist to allow an extension of time) was not directed to the appropriateness of an election in the particular case, but to the reasons why the decision was not made within the time allowed by the Local Court.[16] Johnson J then went on to observe:[17]
[15] Hall v R [2015] NSWCCA 298.
[16] Hall v R [2015] NSWCCA 298 [49] (Simpson JA & Davies J agreed).
[17] Hall v R [2015] NSWCCA 298 [49] ‑ [55] (Simpson JA & Davies J agreed).
It should be emphasised that the issue for consideration under s.263(2), where the prosecution seeks the leave of the Local Court to elect to proceed on indictment out of time, is whether the Court is satisfied that 'special circumstances exist' to allow that extension of time. The focus of attention is not directed to the appropriateness of an election in the particular case, but to the reasons why the decision was not made within the time allowed by the Local Court.
The term 'special circumstances' is used in a variety of different statutory contexts. In R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, in considering the term 'special circumstances' in s.44(2) Crimes (Sentencing Procedure) Act 1999, Spigelman CJ said at [59]-[60]:
'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. It will be comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a "special circumstance".'
In applying the term, it is necessary to keep in mind the nature of the decision for which a finding of special circumstances is required. The phrase has a purposive element and should be interpreted in relation to the objective to be served: D (A Child) v White (1988) VR 87 at 91.
In Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67, Kiefel J said at [19]:
'The words "special circumstances" are not so imprecise as to require judicial gloss: Beadle v Director-General of Social Security (1985) 60 ALR 225, 228. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, 545 I expressed the view that the words require something which distinguishes a person's case from others, something that sets it apart from the usual or ordinary case.'
In Expile Pty Limited v Jabb's Excavation Pty Limited [2002] NSWSC 851; 194 ALR 138 at 139-140 [5], Hamilton J said:
'5 The word "special" is an ordinary English word. The relevant definition of it as used in the present context appears to me to be that given in the Macquarie Dictionary (3rd ed, 1997) as follows:
"6 Distinguished or different from what is ordinary or usual: a special occasion"
The thrust of that definition is that "special" is used in contradistinction to "ordinary" or "common". "Special circumstances" is an expression that has been used in other statutes. One must always bear in mind in an exercise of statutory interpretation that one is interpreting the particular words in the context of the particular statute. However, cases decided on other statutes, whilst they cannot govern the situation, indicate that, where "special circumstances" is used in contexts like the present, it is used in the sense of the definition which I have quoted from the Macquarie Dictionary. Its essential meaning is that it denotes a particular situation which can be regarded as distinguished from the ordinary or common runs of situations. It has been found to bear this meaning in a number of other statutory contexts of a widely varying nature: eg Re Norman (1886) 16 QBD 673 per Lopes LJ at 677; Re Hunter (A Bankrupt), Ex Parte Exclusive English Imports Limited (In Liquidation) [1954] NZLR 747 per F B Adams J at 754; Clarks of Hove Ltd v Bankers’ Union [1978] 1 WLR 1207 per Geoffrey Lane LJ at 1215; Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 per Wilcox J at 225; Lyon v Wilcox [1994] 3 NZLR 422 CA per Casey J at 431; Peninsula Watchdog Group (Inc) v Minister of Energy [1996] 2 NZLR 529 CA per Richardson P at 536.'
Counsel for the Applicant referred Magistrate Crompton to decisions where the term 'special reasons' was considered in the context of a decision whether to direct the attendance of a witness at committal proceedings under s.93 Criminal Procedure Act 1986: B v Gould (1993) 67 A Crim R 297; Tez v Longley [2004] NSWSC 74; 142 A Crim R 122. Although general statements in these cases concerning the term 'special reasons' may have provided some general assistance, it is important to keep in mind the different statutory context surrounding s.263(2).
Where a s.263(2) application is made, it is necessary to consider the reasons why election was not made by the prosecution within the relevant time period, for the purpose of determining whether the Court can be satisfied that special circumstances exist for granting leave for an election to be made out of time. To this end, something is required which distinguishes the case from others – that sets it apart from the usual or ordinary case: Kiefel J in Secretary, Department of Family and Community Services v Chamberlain at [19] (see [52] above).
From these decisions the following principles about the general meaning of the words 'special circumstances', where an applicant is required to show special circumstances, emerge:
(a)the circumstances relied upon must not generally apply to all persons in the same position as an applicant;
(b)what constitutes 'special circumstances' may be one circumstance alone or a combination of circumstances; and
(c)matters that will or will not constitute 'special circumstances' should usually not be determined in advance as satisfying the statutory formulation of 'special circumstances'.
4.2 The approach in B (a child) v Hepple
When dismissing the first application for a declaration, his Honour referred to a decision of McKechnie J in B (a child) v Hepple in which McKechnie J dismissed an appeal against a decision by a magistrate imposing a mandatory sentence of imprisonment for a second time repeat offender for the offence of burglary.[18]
[18] B (a child) v Hepple [2013] WASC 303; (2013) 233 A Crim R 436.
B (a child) v Hepple was an appeal of a sentence of mandatory imprisonment imposed by a magistrate. One of the grounds of appeal was whether the magistrate had erred in deciding to dismiss the appellant's application for a declaration under s 189(3); that two prior convictions for home burglary be regarded as not convictions for any purpose. The young offender in that matter contended that the special circumstances which justified the making of the declaration were that the appellant had been detained under harsh conditions at Hakea Prison having been moved to the prison after the Banksia Hill detention centre had been seriously damaged in a riot.
It was argued in B (a child) v Hepple that the only way in which the mandatory sentence could be avoided was if the magistrate was persuaded that special circumstances existed so that a previous conviction could be disregarded which would have had the result that the young offender would not be regarded for the purposes of sentencing to be a repeat offender.
In B (a child) v Hepple, McKechnie J considered the observations made by Spigelman CJ in R v Simpson(referred to above in the judgment of Johnson J in Hall v R) which his Honour described as helpful and then went on to observe:[19]
The Young Offenders Act pt 10 is entitled 'Miscellaneous'. Section 189 is within it. It is not possible to construe s 189 or s 190 from the context of the part. The context of 'special circumstances' is determined by the words of the section.
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.
Except in the most serious of cases under s 189(1), it relieves young offenders of the long term consequences of a criminal record.
'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.
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'.
[19] B (a child) v Hepple [2013] WASC 303; (2013) 233 A Crim R 436 [36] ‑ [40].
With respect, his Honour's finding that the context of 'special circumstances' cannot be construed from the context of the part of the Young Offenders Act in which the provision appears, but is to be determined by the words of the section, is inconsistent with the well‑established principle of statutory construction that the legislative instrument as a whole forms part of the statutory context.[20]
[20] See eg Project Blue Skyv Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] ‑ [71].
In addition, and also with respect, his Honour's finding that the only circumstances that can be considered under s 189 which have an effect on the rehabilitation of the offender (by foreshortening the period before which the conviction is expunged, whether or not those circumstances can be considered special or not) also ignores the general principle stated by Spigelman CJ in R v Simpsonthat the words 'special circumstances' will always take their colour from their surroundings and are words of such generality that usually lead courts to refuse to identify in advance a list of matters capable of satisfying the statutory formulation.
However, I do agree that circumstances which can properly be said to have an effect on a young offender's rehabilitation can constitute relevant circumstances to consider when determining whether 'special circumstances' exist within the meaning of s 189(3).
In B (a child) v Hepple, McKechnie J found that avoiding harsh conditions in prison were not 'special circumstances' and that such a declaration would directly undermine the plain Parliamentary intention expressed in the Criminal Code s 401(4)(b).[21] Thus, his Honour found that within the context of s 189 of the Young Offenders Act, it was not a proper purpose of the provision to defeat the operation of a clearly expressed Parliamentary intention to mitigate a sentence, and held that a declaration of 'special circumstances' cannot be made under s 189(3) to defeat specific statutory provisions relating to a mandatory sentence.[22]
[21] B (a child) v Hepple [2013] WASC 303; (2013) 233 A Crim R 436 [41].
[22] B (a child) v Hepple [2013] WASC 303; (2013) 233 A Crim R 436 [43] ‑ [44].
His Honour in B (a child) v Hepple did, however, find that the matter raised as a special circumstance, the harshness of detention in an adult prison after (following a riot) Banksia Detention Centre became uninhabitable, constituted a circumstance of mitigation so that a conditional release order should have been made. Consequently, the appeal was upheld on that ground.
When making the finding that a s 189(3) declaration could not be made to defeat a statutory provision relating to a mandatory sentence, McKechnie J did not provide any reasons for making this finding or refer to any authority for this point. It is unfortunate that when his Honour made this finding he did not consider the decisions of the Court of Criminal Appeal in R v MacKay,[23] P (A Child),[24] or Harris v The State of Western Australia.[25] In each of these decisions, the Court of Criminal Appeal held that a conviction of a young offender was not a conviction for the purposes of the repeat offender provisions in the Criminal Code for home burglary where s 189 of the Young Offenders Act operated such that the conviction was not to be regarded as a conviction. A summary of each of these binding decisions of the Court of Criminal Appeal can be found in the reasons of Strk AJ in D v Edgar, which summary I respectfully adopt.[26]
[23] R v MacKay (Unreported, CCA SCt of WA, Library No 970689, 18 November and 10 December 1997).
[24] P (A Child) (1997) 94 A Crim R 593.
[25] Harris v The State of Western Australia [2005] WASCA 147.
[26] D v Edgar [2019] WASC 183 [66] ‑ [92].
The Court of Appeal in Harris v The State of Western Australia[27] 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. However, the Court of Appeal also observed that the question of whether or not 'special circumstances' exist is one which the legislature has reserved to the sentencing court.[28]
[27] Harris v The State of Western Australia [2005] WASCA 147 [20].
[28] Harris v The State of Western Australia [2005] WASCA 147 [20].
I do, however, agree that if the purpose of an application for a declaration is simply to avoid mandatory penalties, and there is no proper reason raised as to why the time should be abridged at the particular time the application is made, the precondition for making declaration would not be met. In addition, even if the precondition is met so that there is a proper reason as to why time should be abridged at that particular time, in the absence of circumstances that can distinguish the young offender's case from the normal course, the condition of special circumstances would not be met and the purpose of defeating the mandatory penalties could not, without more, constitute 'special circumstances'.
4.3 The approach in D v Edgar
D v Edgar was also an appeal against sentence and concerned the home burglary repeat offender provisions of the Criminal Code. The question to be answered in the appeal was whether the magistrate erred in law in finding that she did not have the power to make a declaration pursuant to s 189(3), in relation to the young offender's previous convictions of home burglary.
Her Honour's findings in D v Edgar that 'special circumstances' in the matter before her were established on grounds of the appellant's age, maturity and cultural background are not to be understood on the basis that these circumstances were the only 'special circumstances' that a court could have regard to when considering an application under s189(3).
Importantly, in D v Edgar the respondents agreed that the appeal should be allowed and the appellant resentenced. This appeared to be because the respondents conceded that the magistrate erred in law in deciding that her Honour did not have the power to make an order under s 189(3) in relation to the appellant's previous convictions, the home burglary offences. In addition, the respondents accepted that the matters outlined by the appellant regarding his particular circumstances could have amounted to a finding of 'special circumstances' within the meaning of that term in s 189(3).[29]
[29] D v Edgar [2019] WASC 183 [34] ‑ [35].
Strk AJ, in D v Edgar, properly found that the concessions were not determinative of the matter and then went on to analyse in detail the established authorities and the provisions of s 189 of the Young Offenders Act and the home burglary repeat offender provisions of the Criminal Code, before finding that a declaration made pursuant to s 189(3) could effectively displace the effect of the repeat offender provisions of the Criminal Code.[30]
[30] D v Edgar [2019] WASC 183 [51] ‑ [130].
Before resentencing the appellant, her Honour considered whether to exercise her discretion to make a declaration pursuant to s 189(3).
Her Honour first turned her mind to the meaning of the term 'special circumstances', the observations of Spigelman CJ in R v Simpson and McKechnie J in B (a child) v Hepple, and then observed:[31]
[31] D v Edgar [2019] WASC 183 [138] ‑ [141] (footnotes omitted).
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.
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:[32]
[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.
[32] Before commencing the appeal, an application was made on behalf of the appellant pursuant to s 40 of the Children's Court Act of Western Australia 1988 (WA) for a review by the President of the sentence s 189(3) decision; DLD (a child) v The State of Western Australia [2018] WACC 4 [33].
After referring again to the respondents' concession that the particular circumstances of the appellant could amount to a finding of the existence of 'special circumstances' within the meaning of that term in s 189(3), her Honour then went on to find the following factual circumstances established that 'special circumstances' existed:[33]
(a)the age and maturity of the appellant, who was either 11 or 12 years of age at the time the offences were committed and at the time of resentencing was 13 years of age, together with the fact that he had always offended with older co-offenders;
(b)the cultural background of the appellant was that he came from a severely disadvantaged background, had witnessed extreme violence, including high levels of domestic violence during his formative years, incarceration of his parents and siblings, substance use in his house and interpersonal violence between him and family members with multiple admissions to juvenile detention and multiple episodes of interrupted schooling;
(c)the appellant did not yet meet the criteria to be diagnosed with FASD but had proven significant impairments in academic achievements;
(d)the appellant had taken positive steps towards rehabilitation by making full admissions to the police, early pleas of guilty, had expressed a desire to return to school and had engaged well with the majority of tasks presented to him during his psychological assessment. In addition, he was currently residing with his maternal grandmother who was a pro social support for the appellant and was currently enrolled in high school in year 9, and was in close contact with his paternal grandfather who offers him support and visits him when possible;
(e)the offending was non-violent; and
(f)prior to being sentenced, the appellant had spent 108 days in detention, and had experienced particularly harsh conditions at Banksia Hill, in relation to treatment of his medical conditions.
[33] D v Edgar [2019] WASC 183 [145] ‑ [172].
When regard is had to these circumstances, her Honour formed the opinion that a declaration pursuant to s 189(3) should be made. Her Honour then went on to resentence the appellant.
4.4 Can the Edgar test and the Hepple test be reconciled?
The State says the approach in D v Edgar and B (a child) v Hepple cannot be reconciled, and that if the approach in D v Edgar is applied in this matter then the appeal must be allowed. I do not agree.
First, the approach in D v Edgar can be reconciled with the approach in B (a child) v Hepple.
Second, for the reasons I give below in 5.0, the second application for a s 189(3) was premature, and for this reason, in the absence of a proper reason for the exercise of the discretion to abridge time to regard convictions to have expired at the particular time the application was made and heard, there was no basis for the learned magistrate to exercise his discretion. Consequently, the circumstances raised in D v Edgar as 'special circumstances' which were found to be a proper basis as to why the adverse effects of the past convictions should have been deemed to be not convictions, were not capable of application.
Turning to the approach in D v Edgar and B (a child) v Hepple, in my opinion, the test for what constitutes 'special circumstances' within the meaning of s 189(3) should not be confined only to the matters raised in D v Edgar and B (a child) v Hepple.
In B (a child) v Hepple, McKechnie J only had regard to whether the young offender could establish whether he had taken positive steps towards rehabilitation.
In D v Edgar, Strk AJ also considered whether the appellant in that matter had taken steps towards rehabilitation but also took into account other circumstances that were personal to the young offender which were factors consistent with the general principles in s 7(l) of the Young Offenders Act.
If the general principles to the meaning of the words 'special circumstances' are applied, for circumstances to be regarded as special so as to warrant an abridgement of time, there must exist a reason or reasons why there should be a departure from the normal course that would usually apply to every young offender who is convicted of an offence.
The usual course must be that pursuant to s 189(2), each young offender who is convicted of an offence has to wait two years from the discharge of any sentence imposed as a result of the conviction or convictions, or if no sentence was imposed he or she has to wait two years from the date of conviction for a conviction to be in effect regarded as expired.
Consequently, the first focus of an application made under s 189(3) must be why it is that the time for expiry of a conviction or convictions should be abridged at the particular time in which the application is made and heard. This is the first matter that must be established. To establish this matter, there would usually be a consequence that would flow to the applicant for a declaration if it were not granted.
Both of the decisions in D v Edgar and B (a child) v Hepple are consistent with this principle. Both D v Edgar and B (a child) v Hepple dealt with the issue of whether time should be abridged to regard a prior conviction or convictions as not convictions, which time relevant factor was relevant to the sentencing exercise challenged in each of these appeals.
The following approach can be applied to reconcile these two judgments.
The purpose of abridgement, if granted, in any case has to be because there is some reason or reasons, when regard is had to all of the relevant circumstances, for which the shortening of time in respect of particular convictions is appropriate. Put another way, there must be a particular reason for the shortening of time and there must be special circumstances to support that reason or reasons. These are the two conditions for the exercise of the power to make a declaration. The first can be characterised as a precondition. The second as the condition for the exercise of the discretion.
The condition for the exercise of the discretion conferred by s 189(3) to declare that a particular conviction or convictions have expired pursuant to s 189(2) must be if circumstances are put before the court upon which it can properly form the requisite opinion that 'special circumstances' exist to enable the judicial officer to make the declaration.
This approach can be broken down into two parts:
(a)what is the reason of the abridgement, that is, is there a proper reason or reasons why the adverse effect of a conviction should be immediately deemed to be not a conviction for any purpose, except for the purposes of s 189 of the Young Offenders Act (the precondition); and
(b)is there a circumstance or circumstances consistent with the objectives and principles of the Young Offenders Act that properly justify a departure from the normal course that a conviction will be regarded as expired after 2 years (the condition for the exercise of the discretion)?
Section 6 of the Young Offenders Act provides:
6.Objectives
The main objectives of this Act are —
(a)to provide for the administration of juvenile justice; and
(b)to set out provisions, embodying the general principles of juvenile justice, for dealing with young persons who have, or are alleged to have, committed offences; and
(c)to ensure that the legal rights of young persons involved with the criminal justice system are observed; and
(d)to enhance and reinforce the roles of responsible adults, families, and communities in —
(i)minimising the incidence of juvenile crime; and
(ii)punishing and managing young persons who have committed offences; and
(iii)rehabilitating young persons who have committed offences towards the goal of their becoming responsible citizens; and
(e)to integrate young persons who have committed offences into the community; and
(f)to ensure that young persons are dealt with in a manner that is culturally appropriate and which recognises and enhances their cultural identity.
Section 7 of the Young Offenders Act provides:
7. General principles of juvenile justice
The general principles that are to be observed in performing functions under this Act are that —
(a)there should be special provision to ensure the fair treatment of young persons who have, or are alleged to have, committed offences; and
(b)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; and
(c)a young person who commits an offence is not to be treated more severely because of the offence than the person would have been treated if an adult; and
(d)the community must be protected from illegal behaviour; and
(e)victims of offences committed by young persons should be given the opportunity to participate in the process of dealing with the offenders to the extent that the law provides for them to do so; and
(f)responsible adults should be encouraged to fulfil their responsibility for the care and supervision of young persons, and supported in their efforts to do so;
(g)consideration should be given, when dealing with a young person for an offence, to the possibility of taking measures other than judicial proceedings for the offence if the circumstances of the case and the background of the alleged offender make it appropriate to dispose of the matter in that way and it would not jeopardise the protection of the community to do so; and
(h)detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary; and
(i)detention of a young person in custody, if required, is to be in a facility that is suitable for a young person and at which the young person is not exposed to contact with any adult detained in the facility, although a young person who has reached the age of 16 years may be held in a prison for adults but is not to share living quarters with an adult prisoner; and
(j)punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways; and
(k)a young person who is dealt with for an offence should be dealt with in a time frame that is appropriate to the young person's sense of time; and
(l)in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered; and
(m)a young person who commits an offence is to be dealt with in a way that —
(i)strengthens the family and family group of the young person; and
(ii)fosters the ability of families and family groups to develop their own means of dealing with offending by their young persons; and
(iii)recognises the right of the young person to belong to a family.
As the appellant points out in his supplementary submissions, what constitutes 'special circumstances' takes its flavour from the objectives and incorporation of the principles of juvenile justice.
Circumstances which could be capable of being regarded as consistent with the objects and principles of the Young Offenders Act, irrespective of whether a person has not been charged or convicted of any offences for which he or she is to be sentenced, include (depending upon all other relevant circumstances):
(a)employment or education (for instance, where a person wants to embark upon a vocational course or degree for which they cannot have unspent convictions). These circumstances may be capable of being consistent with the main objective in s 6(d)(iii) of rehabilitation towards the goal of their becoming responsible citizens and (e) integration of young persons who have committed offences into the community; or
(b)applications for a visa for the purposes of entry to another country to obtain medical treatment that is not otherwise available in Western Australia. These circumstances are capable of being consistent with the general principle of juvenile justice in s 7(a) that there be fair treatment of young persons who have committed offences.
4.5 Whether a subsequent application can be brought under s 189(3) in respect of convictions that have been the subject of a prior failed application
The respondent only raises this point insofar as the application for a s 189(3) declaration sought to deem the first three home burglaries as expired.
The respondent contends that there is nothing within the text, context or purpose of s 189(3) which permits (subject to abuse of process principles) an unlimited number of applications being brought until one is successful or the effluxion of the period of two years renders an application nugatory.
The respondent points out that s 189 is a creature of statute, and argues that in the absence of an express provision entitling a person to make more than one application in respect of the same conviction or convictions there is no power for a court to entertain more than one application for a declaration under s 189(3).
In support of the respondent's argument, the respondent initially relied upon the doctrine of res judicata, as stated by Buss JA, as follows:[34]
By the doctrine of res judicata, a final judgment on the merits by a competent court or tribunal extinguishes any cause of action which is the subject of the decision. If the cause of action is made out, it merges in the judgment. The cause of action ceases to have an independent existence. If the cause of action is not made out, none of the parties can thereafter maintain another proceeding on the same cause of action …
As Weinberg J observed in Hamersley Iron Pty Ltd v National Competition Council [2008] FCA 598; (2008) 247 ALR 385:
[R]es judicata can arise only from a final judgment of a competent tribunal given on the merits. It cannot arise from a proceeding that was discontinued, or resolved by way of dismissal for want of prosecution, or non-compliance with court orders. In order to establish res judicata, it must be shown that the cause of action in the later proceeding is identical to that which was litigated in the former proceeding. The identity of the causes of action is determined as a matter of substance rather than form. Res judicata binds only the parties and their privies.
Res judicata was formerly regarded as a rule of evidence but is now generally considered to be a rule of public policy. When the doctrine applies, it constitutes an absolute bar to a subsequent suit for the same cause of action … [T]he correctness of the decision is not relevant. If it is a final decision by a court having jurisdiction as to the same question and between the same parties, it will be binding on them unless and until overturned on appeal [60] ‑ [61].
[34] Bennett v The State of Western Australia [2012] WASCA 70 [77] ‑ [78] (citations omitted).
However, the doctrine of res judicata has no application to s 189(3). This is because an application made pursuant to s 189(3) is not an application between parties. Nor is it an application about a dispute about the existence of a right or obligation.
As the appellant points out in his written submissions dated 1 August 2022, the power under s 189(3) is not a cause of action between parties.[35] A declaration under s 189(3) does not involve the facts supporting a cause of action. A finding whether an application has special circumstances under s 189(3) is not a judgment that is enforceable against the State because as the Court of Appeal explained in Harris v The State of Western Australia, a declaration under s 189(2) concerns '… the consequences of the fact of the convictions itself'.[36] It is not concerned about the rights or responsibilities of the State.
[35] Bennett v The State of Western Australia [2012] WASCA 70 [78]; citing Hamersley Iron Pty Ltd v National Competition Council [2008] FCA 598; (2008) 247 ALR 385.
[36] Harris v The State of Western Australia [2005] WASCA 147 [14].
In addition, for this reason also, cause of action estoppel and issue estoppel would not apply, but Anshun estoppel and the doctrine of abuse of process could apply if the matters relied upon in a subsequent application were so connected with the subject matter of a first application or if an issue is not raised in the first application and should have been raised, or the subsequent application raises the same matters relied upon in the first proceeding.
In Tomlinson v Ramsey Food Processing, the plurality explained the scope of application of the principles of res judicata, the three forms of estoppel and the abuse of process to proceedings where subsequent proceedings are instituted:[37]
An exercise of judicial power, it has been held, involves 'as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons'. The rendering of a final judgment in that way 'quells' the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they 'merge' in that final judgment. That merger has long been treated in Australia as equating to 'res judicata' in the strict sense.
Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.
Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as 'cause of action estoppel'. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as 'issue estoppel'. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a 'judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies'. The third form of estoppel is now most often referred to as 'Anshun estoppel', although it is still sometimes referred to as the 'extended principle' in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a 'true estoppel' and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
[37] Tomlinson v Ramsey Food Processing [2015] HCA 28; (2015) 256 CLR 507 [20] ‑ [22] (French CJ, Bell, Gageler & Keane JJ) (footnotes omitted).
Although the categories of abuse of process are not closed, the doctrine of abuse of process is informed in part by considerations of finality and fairness.[38]
[38] Tomlinson v Ramsey Food Processing [2015] HCA 28; (2015) 256 CLR 507 [24] (French CJ, Bell, Gageler & Keane JJ).
No submission was made to the learned magistrate at first instance when the second application was heard that the application was in part incompetent on grounds of res judicata, estoppel or abuse of process.
The respondent, however, does contend in the appeal that the bringing of the second application in respect of the first three home burglaries (insofar as second application sought to apply to these convictions) constitutes an abuse of process on grounds that appear to be solely confined to the point that the first application was a final determination on the merits of an application to deem each of the first three home burglary convictions expired. This contention alone is not sufficient to make out a case of abuse of process.
It would usually constitute an abuse of process if an applicant were to bring an application under s 189(3) which relied upon the same factual circumstances relied upon in a prior application. This does not mean that facts raised in a prior application could not be raised in a subsequent application where in addition to new factual circumstances in a subsequent application special circumstances could be found to exist, whereas in the absence of the new factual circumstances in the previous application special circumstances could not be found to exist.
The general principles that apply to the determination of whether proceedings constitute an abuse of the process of the court were summarised by Vaughan J in Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd:[39]
What amounts to an abuse of the court's process is insusceptible of a formulation comprising closed categories. It extends to all categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Abuse of process occurs in any circumstance in which the use of the court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. However, the onus of satisfying the court that there is an abuse of process is a heavy one. The power to dismiss proceedings as an abuse of process should be exercised with caution and only in the most exceptional or extreme case.
…
The doctrine of abuse of process is informed in part by considerations of finality and fairness. The underlying public interest is twofold: there should be finality in litigation and a party should not be twice vexed in the same matter. Thus abuse of process may exist where a person seeks to re-litigate an issue already decided. There is a general public interest in the same issue not being litigated over again. It has been said that it would be a 'scandal to the administration of justice' if, a question having been disposed of by one case, the litigant were permitted to set up the case again by changing the form of proceedings.
For a step in a proceeding to amount to an abuse of process by reason of impermissible re-litigation of a dispute it is not necessary that one of res judicata, issue estoppel or Anshun estoppel be applicable.
The court is not only concerned with the effect of conduct on the parties but with 'the public interest which is in the maintenance of public confidence in the administration of justice'. The court acts to prevent misuse of its procedure which would 'bring the administration of justice into disrepute among right-thinking people'. Accordingly, as noted, the court may stay or dismiss matters as an abuse of process where a party seeks to re-litigate controversies which have already been decided. Similarly, there may be an abuse of process where a party seeks to re‑litigate an issue decided between it and a third party. There may also be an abuse of process where a defendant seeks to re-litigate an issue that was decided adversely to the defendant. The doctrine does not require identity of parties or mutuality. In short, the fact that the parties may not be identical, or the relief different, does not necessarily disentitle a party to relief under the doctrine of abuse of process.
In applying the principles of abuse of process the focus is on matters of substance rather than form.
Factors relevant to determining whether an attempt to re-litigate is an abuse of process were discussed in State Bank of New South Wales Ltd v Stenhouse Ltd. Those factors have been reproduced with apparent approval in a number of intermediate appellate court decisions. The task necessitates an evaluative judgment sensitive to all the facts and circumstances and informed by the public interest in preventing re‑litigation of disputes. The court conducts an 'overall balancing of justice' having regard, among other things, to the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation on the principle of finality and public confidence in the administration of justice.
[39] Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121 [102], [106] ‑ [110] (footnotes omitted).
When regard is had to the objectives and principles of the Young Offenders Act it can be seen that s 189(3) might properly have work to do after an original failed application. For example, by the time a subsequent application is made a young offender may have been made an offer of employment that he or she can only accept if he or she can produce a record of court proceedings that does not show any convictions.
To provide for subsequent meritorious claims that constitute different special circumstances would be consistent with:
(a)the objective in s 6(e) of the Young Offenders Act which provides as one of the main objectives of the Act is to integrate young persons who have committed offences into the community; and
(b)the general principle in s 7(a) that in performing functions under the Young Offenders Act there should be special provision to ensure the fair treatment of young persons who have, or are alleged to have, committed offences.
Because I have found in 5.0 that no miscarriage of justice occurred in dismissing the second application, it is not necessary to consider whether the additional circumstances relied upon in the second application were in fact new and relevant circumstances requiring considerations as to whether 'special circumstances' could be found to exist to warrant an exercise of discretion in favour of the appellant.
For these reasons, I do not find it necessary to find whether the second application was in part incompetent.
5.0 The magistrate's reasons for decision – is error established?
The short answer to this question is yes.
However, the errors in his Honour's reasons are not material, and for this reason no substantial miscarriage of justice can be found to have occurred. In addition, the decision to dismiss the application cannot be found to be so unreasonable as to attract relief by way of judicial review.
It is correct to find that s 189(3) does not contemplate any specific time as to when an application is to be made. However, for the reasons I have given in 4.4, at the time of hearing of an application for abridgement of time there must be a proper reason or reasons why the adverse effect of a conviction or convictions should be immediately deemed to be not a conviction for any purpose, except for the purposes of s 189 of the Young Offenders Act.
Turning to the errors in the learned magistrate's reasons for dismissing the application for a declaration.
First, I do not agree that s 189 of the Young Offenders Act can be construed by regard to extrinsic materials that came into existence prior to or by the enactment of the Spent Convictions Act. These materials are of no assistance, because the operative scheme of Spent Convictions Act is sufficiently different to the operative scheme of s 189. This is because the scheme of the Spent Convictions Act, when considered in the context of, and when read with the provisions of the Sentencing Act 1995 (WA), are part of the sentencing process and enable a sentencing judicial officer to make a spent conviction order which orders have immediate operative effect and are part of a sentence.
Section 39(2)(c) of the Sentencing Act empowers a court sentencing an offender to impose a fine and order the release of the offender with or without making a spent conviction order.
The preconditions for the exercise of the power to make a spent conviction are set out in s 45(1) of the Sentencing Act. Section 45(1) provides:
(1)Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless ‑
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to ‑
(i)the fact that the offence is trivial; or
(ii)the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
Section 45(1)(a) of the Sentencing Act requires a conclusion that the offender is unlikely to commit such an offence again, not that the offender will definitely not commit such an offence again.[40] Unless this precondition is satisfied, the court has no power to exercise its discretion to make, or not to make, a spent conviction order. If the preconditions in s 45(1)(a) and s 45(1)(b)(i) or (ii) are satisfied, the sentencing judicial officer has a discretion, not a duty, to make a spent conviction order.[41]
[40] Lee Suarez v Cutler [2012] WASC 171 [25] (Beech J).
[41] GNR v The State of Western Australia [2015] WASCA 5 [44]; applied in Sharpe v Vinning [2020] WASCA 79 [96].
In addition, in determining whether to exercise the discretion to make a spent conviction order when sentencing an offender, the sentencing judicial officer must take into account the interests of the offender and public interest. Although one aspect of the public interest relates to the interest of the community in aiding a person's rehabilitation in an appropriate case,[42] this is not the only matter of public interest that a sentencing judicial officer must take into account. The other aspect of the public interest is the effect of an order on general deterrence, including the protection of the community.[43]
[42] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [28] (Murray J).
[43] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 [18] (Burchett AUJ).
Second, in this matter it is clear the learned magistrate erred in the construction of the purpose and effect of s 189(3) of the Young Offenders Act in that his Honour disagreed with a line of established binding authority that at the time of sentencing for an offence or offences where 'special circumstances' are raised that are relevant to the exercise of the discretion conferred by s 189(3), a sentencing judicial officer is empowered to deal with the application for a declaration at the same time as sentencing the offender.
The learned magistrate in this matter was wrong in law to find that an application for a declaration under s 189(3) could not be heard and determined by a court when sentencing an offender. For example, when sentencing an offender there may well be special circumstances that exist that require that an offender not be subject to repeat offender provisions in the Criminal Code, which would require the exercise of the discretion to make a declaration to abridge time under s 189(3).
However, this error of law is not an error which goes to any of the grounds of appeal, and is not in any event material to the disposition of any of the issues raised in the appeal.
In some matters, such as in D v Edgar and B (a child) v Hepple, where a young offender is to be sentenced for offences which attract mandatory penalties because of unexpired convictions, it may be appropriate depending upon the circumstances that are relevant to the circumstances of the young offender that a s 189(3) application be dealt with by the sentencing judicial officer prior to, or immediately prior to sentencing.
A very obvious example would be if a young offender is to be sentenced for an offence which sentence will necessarily attract a mandatory period of detention because the offender has prior convictions which have not expired, but that subsequent to the commission of the offence and after being found guilty following a plea or trial but before sentencing, the offender suffered catastrophic injuries resulting in brain trauma and paraplegia, which rendered any mandatory period of detention inappropriate. In such a matter, the special circumstances are likely to be the fact of the accident and the permanent injuries suffered by the offender, and the reason why the time should be abridged would likely be that the nature of the offender's injuries were such that it would not be appropriate he or she be subject to a mandatory period of detention.
In these circumstances, the factors considered by Strk AJ in D v Edgar may not be relevant, but such an application may, depending upon all relevant circumstances, be consistent with the general principle of juvenile justice in s 7(a) that a young offender should be dealt with fairly and the general principle that can be implied in s 7(d) that a young offender should not be subject to punishment in circumstances where the community does not need any protection from illegal behaviour and detention of the young offender would serve no purpose.
In other matters, it may be appropriate to make a s 189(3) application for a declaration in the absence of any upcoming sentencing hearing. An obvious example of such a case that could be properly dealt with in the absence of any other application or matter would be when a person has not been charged with committing new offences of any kind but seeks to make an application to obtain a visa to visit another country and a declaration of a particular conviction or convictions in the application might constitute grounds for refusal of a visa.
Whether such applications should be granted in any particular case would be a matter for the judicial officer who hears the application.
For the reasons I have already given, I agree that special circumstances are capable of being established where there are circumstances which are personal to the offender in question which can be found to properly compel a judicial officer to exercise the discretion to make a declaration because the relevant circumstances show that the young offender has taken steps towards his or her rehabilitation and that an abridgement of time for deeming a conviction not to be a conviction (for any purpose except for the purposes under s 189) would assist in his or her rehabilitation.
For example, if a young offender, with the assistance of perhaps members of their family or other responsible adults, has removed his or her self from criminogenic triggers or associating with groups of young persons who are known to be regular offenders and the young offender is offered a job as a trainee at a workplace that has a policy of not employing any person who has a history of particular criminal offences.
In such circumstances, it may (on the basis of all relevant circumstances) be clear that the purpose of such an application could assist the young offender's rehabilitation, which purpose could be found to be consistent with the objectives and principles of the Young Offenders Act. In these circumstances, there would likely be a proper time related reason for making this application to abridge time under s 189(3) because at this particular time the young offender had been offered a job, and he or she would not be able to take up the position if the relevant convictions were not deemed to be expired by a declaration.
In this appeal, the fundamental difficulty with the appellant's application for a s 189(3) declaration was, and is, that to establish the existence of 'special circumstances' there must be a proper reason for why the declaration should be made at the time the application is brought before a court. In the absence of a proper reason as to why the power should be exercised immediately, the precondition for the exercise of the power to make a declaration had not been met. Put another way, there must be some consequence that will inevitably follow if the application is not granted.
Contrary to any suggestion that the application was brought for the sole reason to subvert the mandatory sentencing legislation, the appellant claims it was not.
In the appellant's written submissions dated 27 June 2022, the reason why the application was made in March 2022 appears to be that the established authorities recognise the appellant's fundamental human dignity and as there are no uniform rates of 'rehabilitation' his age, cultural background and maturity must be determinative as special circumstances in his favour. Whilst those matters may form relevant circumstances to be taken into account in determining whether special circumstances exist if there was a proper reason before the Children's Court in March 2022 of why the effect of the convictions should have been immediately deemed to have expired, in the absence of any immediate consequence to the appellant on the dismissal of the application, these contentions are not capable of being construed to be a time related reason for bringing the application. For this reason, it cannot be found that the learned magistrate erred in law by dismissing the application.
As the respondent points out, the only reasonable explanation for why the appellant brought the application for the s 189(3) declaration with respect to home burglary convictions, and not the various other convictions, was a desire to ensure that he will not be subject to the mandatory sentencing regime in the event that he commits another home burglary offence before his convictions become automatically discharged by operation of s 189(2).
The learned magistrate in this matter clearly and properly identified that it could not be found at the time he heard the second application that the appellant was likely to commit a home burglary offence before his prior convictions became spent.
The circumstances sought to be relied upon as special in the application related to matters that could be raised in the event that the appellant was convicted of any further offences. Clearly, the second application was premature.
For this reason, grounds 1 and 2 of the grounds of appeal have no prospect of success and the appeal must be dismissed.
For the same reasons, ground 3 should be dismissed. Although the learned magistrate erred in law in respect of the construction of the scope and purpose of s 189 of the Young Offenders Act, because the appellant is unable to make out a case that the decision of the learned magistrate to dismiss the application was unreasonable, it cannot be found that the precondition for the exercise of the power to make a declaration had been met, which precondition is critical to the power to exercise the discretion.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Associate to the Honourable Justice Smith
13 SEPTEMBER 2022
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