"F" (A Child) v The Queen
[2001] WASCA 247
•21 AUGUST 2001
"F" (A CHILD) -v- THE QUEEN [2001] WASCA 247
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 247 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:234/2000 | 18 MAY 2001 | |
| Coram: | WALLWORK J SCOTT J WHEELER J | 21/08/01 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | No error by sentencing JudgeLeave to appeal granted Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | "F" (A CHILD) THE QUEEN |
Catchwords: | Criminal law Sentencing Wilful murder Life imprisonment Children's Court 16-year-old Stabbed and killed his former girlfriend aged 16 years Planned attack Multiple stab wounds Assailant apparently calm during and after attack Pleaded guilty to offence Family background chaotic Offender mentally disturbed 12 year minimum term On appeal |
Legislation: | Nil |
Case References: | "RC" A Child (1995) 83 A Crim R 561 Nevermann (1989) 42 A Crim, R 347 Azzaddin v The Queen (1999) 109 A Crim R 474 "B" v The Queen (1991) 7915 and 7916 of 1991 "C" v The Queen (1991) Children's Court ofWA "C1" v The Queen (1994) SCt of WA "C2" v The Queen (1995) SCt of WA "E" v The Queen (1995) SCt of WA "G" v The Queen (1995) SCt of WA "I" v The Queen (1993) SCt of WA Lowndes v The Queen (1999) 195 CLR 665 "M" v The Queen (1996) Children's Court of WA Monaghan v The Queen (1990) 3 WAR 467 "N" v The Queen (1992) SCt of WA |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "F" (A CHILD) -v- THE QUEEN [2001] WASCA 247 CORAM : WALLWORK J
- SCOTT J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Wilful murder - Life imprisonment - Children's Court - 16-year-old - Stabbed and killed his former girlfriend aged 16 years - Planned attack - Multiple stab wounds - Assailant apparently calm during and after attack - Pleaded guilty to offence - Family background chaotic - Offender mentally disturbed - 12 year minimum term - On appeal
Legislation:
Nil
(Page 2)
Result:
No error by sentencing Judge
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
Applicant : In person
Respondent : Mr R E Cock QC
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nevermann (1989) 42 A Crim R 347
"RC" A Child (1995) 83 A Crim R 561
Case(s) also cited:
Azzaddin v The Queen (1999) 109 A Crim R 474
"B" v The Queen (1991) 7915 and 7916 of 1991
"C" v The Queen (1991) Children's Court ofWA
"C1" v The Queen (1994) SCt of WA
"C2" v The Queen (1995) SCt of WA
"E" v The Queen (1995) SCt of WA
"G" v The Queen (1995) SCt of WA
"I" v The Queen (1993) SCt of WA
Lowndes v The Queen (1999) 195 CLR 665
"M" v The Queen (1996) Children's Court of WA
Monaghan v The Queen (1990) 3 WAR 467
"N" v The Queen (1992) SCt of WA
(Page 3)
1 WALLWORK J: The applicant in this matter applies for leave to extend time to appeal against a sentence of life imprisonment for wilful murder which was imposed upon him in the Children's Court at Perth on 28 August 1992. The sentence was passed pursuant to s 282(c) of the Criminal Code as it then was. At the time he was sentenced the applicant was 16 years of age. At the time he committed the offence of wilful murder to which he pleaded guilty, he was nearly 16 years of age.
2 It is agreed that at the time of the imposition of the sentence, the learned sentencing Judge had the option of imposing a finite sentence such as was imposed on Master C in June 1995. That last mentioned sentence was a sentence of 13 years and 9 months' imprisonment with eligibility for parole. The offender in that case had been in prison for some time and the starting point before making allowance for the time he had spent in custody was 15 years' imprisonment. The offender was a little over 14 years of age at the relevant time.
3 The crime which the applicant in this case committed was said by witnesses to have been a persistent, calm and deliberate attack with a knife on a girl who had just turned 16 years of age and who at the time of the attack, was seated in a classroom with other students. The applicant had apparently obtained possession of a large knife before he had come to school on the day in question. He had strapped it to his back in a scabbard. During a class, he had walked up behind the girl concerned, pulled the knife from the scabbard, put his left arm around the girl's neck and commenced to stab her in the chest and stomach. He had continued to do this whilst she tried to escape from him.
4 The victim was stabbed in the chest, stomach, arms, legs and buttocks. It was a planned attack. From the known facts, it apparently occurred because the victim had lost interest in the applicant as her boyfriend. The applicant had advised another person earlier on that day that he intended to do something and that the whole class would know about it. He told that person it would shock her. He indicated that it was something he had wanted to do for a long time, but that he had never had "the guts" to do it. However he was going to do it on that day.
5 Without stating fully the details of the attack, it can fairly be said to have been a deliberate assault which showed no mercy whatsoever to the victim. One of the male teachers who apprehended the applicant shortly after the attack said that the applicant was so cool and calm that he had found it frightening. There were 18 separate wounds on the deceased's body.
(Page 4)
6 The options open to the learned sentencing Judge, were strict security life imprisonment, life imprisonment, an order that the applicant be detained in strict custody until the Governor's pleasure was known or, pursuant to s 19 of the Criminal Code, a sentence of imprisonment for a shorter term.
7 At the time of the submissions on sentencing, the learned prosecutor had submitted that the crime was "as bad as they get" and that were the applicant an adult, he would have had no hesitation in submitting that he must receive a strict security life imprisonment sentence. However, because the applicant had not reached 18 years of age and was therefore a child, and taking into account that he had pleaded guilty, the prosecutor conceded that it would be open for the Judge to consider a punishment other than strict security life imprisonment. The prosecutor advised, however, that in his submission the appropriate punishment in all the circumstances of the case was life imprisonment. He submitted that nothing less than life imprisonment would be an appropriate punishment for the crime.
8 In submissions before the sentencing Judge on the applicant's behalf it was said that he came from a broken family. His parents had separated when he was 10 years of age. He had brothers and sisters. A psychiatrist had referred to the family background as being chaotic. His father and mother had been involved in very bitter court actions concerning the custody of and access to the children. They were said to be hostile to each other.
9 It was put to the learned Judge by the applicant's counsel that from about May 1991 the applicant and the victim had been boyfriend and girlfriend. That had developed into a sexual relationship. A clinical psychologist who had spent considerable time with the applicant, commencing on the night of the murder, had concluded that the applicant's actions were the result of "stored up rage" accumulated over the years and that the rage experienced was far in excess of a distress reaction due to the relationship with the victim breaking up.
10 It was submitted for the applicant that all the medical evidence indicated that this had not been a killing arising purely from jealousy. There was more to it than that. It had been said by a clinical psychologist that the applicant showed the characteristics of a histrionic personality disorder, coupled with a mood disorder with depressive elements, and that he had been in a state of acute suicidal preoccupation prior to the murder.
(Page 5)
11 It was contended for the applicant that the stresses he had been under had included fights and squabbles within his family, the on and off relationship with the victim, her alleged "infidelity" with another boy, and later the appearance of a former boyfriend. The applicant had earlier stolen a diary belonging to the victim. It was said that in the diary was a confirmation about the victim and another boy.
12 The applicant's mother had taken him to a psychiatrist some time after an earlier incident in August 1991 when he had taken a vicious kick at a boy at school for no apparent reason. That was some time prior to the events on 6 November 1991, leading to the wilful murder conviction.
13 Prior to the crime being committed on 6 November 1991, the applicant had visited churches on a number of occasions. He had tried self-hypnosis and also meditation to relieve his stress. He had contemplated suicide. A clinical psychologist was of the opinion that at the time of the relevant acts the applicant was distressed, disturbed and distant from reality; that he had been in an extremely disturbed state. A psychiatrist said that at the time of the relevant acts the applicant was only 15 years of age and did not have a fully developed and mature personality. I note that when he was interviewed by detectives immediately after the offence, he had bowed his head but otherwise expressed no remorse.
14 It was submitted to the sentencing Judge that a life sentence with a minimum of 12 years before eligibility for parole was an adult sentence, and that the court was dealing with an offence by a 15 year old boy - 16 at the time of sentencing. Counsel asked the Judge to sentence the applicant to be detained during the Governor's pleasure, or if he was not minded to do that, to consider sentencing him to a finite term with the addition of an order at the Governor's pleasure.
15 When sentencing the applicant, the learned Judge referred to the possible sentences of strict security life imprisonment, life imprisonment, an order that he be detained in strict custody until the Governor's pleasure was known and the possibility, pursuant to s 19 of the Children's Court of Western Australia Act, of a lesser penalty. His Honour also referred to s 19 of the Criminal Code.
16 The Judge described the relationship between the victim and the applicant as having been between immature adolescents and as being emotionally highly disturbing for both of them. His Honour said: "It would seem from a number of pieces of evidence that you had thought about such an event previously". His Honour also referred to evidence
(Page 6)
- that the applicant had previously asked the girl what she regarded as the worst way to die and that she had replied that she would hate to be stabbed to death. His Honour also said: "In your diary in September you had expressed the hope that she would die and there was therefore very considerable evidence of premeditation".
17 The Judge referred to a doctor's opinion that the applicant's mental illness could be described as a neurotic or minor mental disorder characterised by mood changes, panic and anxiety; that a psychiatrist had concluded that the applicant had been suffering an ongoing adjustment reaction with associated mood disturbance in response to trauma and stress in his life, and to an anxiety state or reactive depression and that a clinical psychologist had described him as being disturbed and jealous, distressed and distant from reality, with significant emotional impairment.
18 His Honour referred to the submissions of the applicant's counsel and to the fact that the applicant had been in custody since the previous November. His Honour said that he had had regard to previous decided cases, including those in the Children's Court. He said he did not regard the applicant's case as falling into the category where a suitable sentence was that of being detained at the Governor's pleasure. His Honour concluded his remarks by saying:
"In my view, given the varying factors that I have had to consider and in particular on the one hand the terrible nature of your crime and my duty to place that in some scale, and on the other and as part of the assessment your youth, your antecedents and your plea, you shall now be ordered to serve a term of life imprisonment under s 282(c) of the Criminal Code."
19 The applicant applies for an extension of time within which to apply for leave to appeal. He has lodged six grounds of appeal.
20 The first ground of the appeal is that the sentence of life imprisonment which was imposed on him and which has a 12 year minimum term was manifestly excessive in comparison to other sentences which have been passed on other children. It was submitted that the sentencing Judge had erred by not applying the provisions of s 19 of the Children's Court of Western Australia Act or alternatively, by failing to exercise his discretion in applying s 19 of the Act, given the youth of the applicant.
21 It was submitted by the applicant that the effective period of 12 years before consideration for parole was manifestly excessive in the light of his
(Page 7)
- age at the time of the offence, which was 15 years, and his age at the time of sentence which was 16 years. He contended that he had pleaded guilty and had favourable prospects of rehabilitation. Further, that in a previous case of "C" where a youth had been convicted of wilful murder, a finite term of 13 years and 9 months imprisonment had been considered appropriate. In that case the sentencing Judge had described "C" as having committed a particularly callous crime which, although unpremeditated, had been carried out on a defenceless woman. The Judge had considered in that case that there had been no significant provocation and that the offender had expressed no remorse.
22 It was submitted in this case that the sentence imposed on "C" would result in a minimum period of 7 years and 2 months before he was considered eligible for parole and that that was substantially lower than the 12 years the applicant must serve before he will be eligible. It was also submitted that the applicant's sentence did not take account of the sentencing principle that a young person who is dealt with for an offence should be dealt with within the time frame appropriate to that young person's sense of time. That principle has subsequently been adopted in the Young Offender's Act. It was submitted that the principles of sentencing are different for a child and that the age of the child affects the sentence that is appropriate – the authorities relied on for that proposition were s 50 of the Young Offender's Act and "RC" A Child (1995) 83 A Crim R 561. It was submitted that in this case there had not been a recognition of the different sentencing principles applicable to a juvenile and that a finite term of imprisonment should have been imposed.
23 The applicant argued that although the learned sentencing Judge would have been aware of the sentencing options which were open by him, that was different to him actually taking them into consideration. It was submitted he had not done that. It was submitted that in his sentencing remarks the learned Judge had not actually said no to a finite sentence.
24 The applicant contended that although the sentencing Judge had explained why he had not sentenced him to a sentence involving the Governor's pleasure, there had been no mention by the Judge of why he had not imposed a finite sentence. It was pointed out that although "C" had spent some time on remand before being sentenced to the 13 years and 9 months imprisonment, the applicant had also spent 10 months on remand before being sentenced.
(Page 8)
25 In answer to the applicant's propositions, it was contended for the respondent that in "C's" case the offender had only been 14 years and 5 months of age at the time of the offence. He had also been described as somewhat immature. It was contended that a big difference was that "C's" offence had apparently been an unpremeditated offence, whereas in this case there had clearly been premeditation and greater maturity in the offender.
26 It was submitted for the respondent that none of the other sentences relied upon by the applicant had involved cases of wilful murder. That is correct. It was also submitted that the applicant had not demonstrated that there was any other case, either at first instance or otherwise, comparable to his in which a person had received a lesser sentence than him. It was contended that the proposition that his sentence was disproportionate to other juvenile sentences had not been made out.
27 With respect to the applicant's proposition that the learned Judge had not applied the principle of rehabilitation correctly, the respondent contended that the Judge had not only known of this need, but had a reputation for well knowing it. In my view there is no doubt about that proposition.
28 In his sentencing remarks his Honour referred to the applicant's youth, antecedents and plea before he imposed the term of life imprisonment. He was of course aware of the principles applicable to sentencing youths. The fact that his Honour did not go into that aspect of the matter in more detail is not an indication that he overlooked those principles.
29 His Honour stated at the beginning of his sentencing remarks that "by s 19 of the Children's Court of Western Australia Act, the Court also has a discretion to impose a lesser penalty, and in that context I also have regard to s 19 of the Criminal Code." Later in his sentencing remarks the Judge specifically addressed the question of a sentence involving the Governor's pleasure, which had been urged on him by counsel for the applicant. The fact that his Honour did not then go on and specifically rule out a finite sentence does not indicate that he was not well aware of the possibility of one, as he had stated at the beginning of his sentencing remarks. A finite sentence by itself, had not been submitted as being appropriate by counsel. That explains why his Honour did not deal with such a sentence in greater depth.
(Page 9)
30 In Nevermann (1989) 42 A Crim R 347 at 350, Malcolm CJ said:
"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a Court of Petty Sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail. It does not follow either from the decision of James (1985) 14 A Crim R 364 or from s 19A of the Criminal Code that because imprisonment is the sentence of last resort that it is necessary in each case to name all the possible alternatives and the reasons for rejecting them: see, for example, Napper v Samuels (1972) 4 SASR 63 at 68, per Bray CJ and Ciccone (1974) 7 SAR 110. It is enough if the sentencing Judge indicates in general terms that he has considered the alternatives and states his reason for his adoption of the sentence or other disposition he considers appropriate."
31 In my opinion the learned sentencing Judge complied with these reasons of the Chief Justice in Nevermann's case.
32 Ground 1 of the appeal is not sustained.
33 Ground 2 of the appeal is that the learned sentencing Judge erred by not having regard to the principle that a young person should be dealt with in a time frame that is appropriate to that young person's sense of time.
34 The applicant relies on the principles in the Young Offender's Act 1994 which codified the existing principles for juvenile sentencing.
35 In this case the Judge was aware that he could have imposed a sentence of strict security life imprisonment. He chose not to do that, although had the applicant been an adult, in my view, a sentence of strict security life imprisonment would have been appropriate. In his submissions the prosecutor said that the crime was "as bad as they get". He said that if the applicant had been an adult he would have had no hesitation on behalf of the Crown, regardless of his prior good record, in submitting that he must receive a sentence of strict security life imprisonment. The prosecutor said however, that due to the fact that the applicant was yet to turn 18 years of age and was a child, the Crown conceded that the learned Judge could consider a punishment other than strict security life imprisonment. He referred to that submission as a
(Page 10)
- concession. He contended that the appropriate punishment was a sentence of life imprisonment.
36 In his sentencing remarks the learned Judge referred in detail to the facts of the matter and to the medical reports; also to the fact that the applicant was a young man who had been grappling with emerging social and sexual needs, without the framework of a consistently caring and appropriately controlling family. He said he had listened carefully to what the applicant's counsel had had to say on the applicant's behalf "principally as to your age, your history and your plea of guilty …". He also referred to the fact that the applicant had been in custody from the previous November. He said he had to take into account "the legal authorities".
37 Towards the end of his sentencing remarks the learned Judge said:
"For his part, Mr Tannin has not asked for, but says it is open to me, to sentence you to strict security life imprisonment. Given your age and the other matters that he has referred to, I think he was correct to take the course that he did."
38 His Honour again referred to the applicant's youth, antecedents and his plea before imposing the sentence of life imprisonment.
39 Adopting the principles in Nevermann which I have earlier referred to, in my view it cannot be said that the learned Judge did not take account of a time frame appropriate to a young person's sense of time. That question is one of many involved in the sentencing of youthful offenders. As stated above, the Judge was well aware of the relevant decided cases and in accord with the reasoning in Nevermann, did not have to mention each consideration in his sentencing remarks. The fact that he did not impose a sentence of strict security life imprisonment was a recognition of the applicant's youth and the other matters involved in the consideration of the appropriate sentence.
40 In my view Ground 2 is not sustained.
41 Ground 3 is to the effect that the learned sentencing Judge erred when deciding the applicant's sentence given that there was no consideration afforded to the rehabilitative prospects of the applicant. Again the applicant relied on the provisions of the Young Offender's Act, the Child Welfare Act 1947 and the Children's Court of Western Australia Act 1988. The applicant submitted that the learned sentencing Judge had afforded no consideration to the rehabilitative prospects of the applicant.
(Page 11)
- He stated that he had come to that conclusion because there had been no direct comment by the learned Judge concerning rehabilitation.
42 As stated above, it is apparent that the learned sentencing Judge took into account the youth of the applicant and the prior decided cases concerning the sentencing of youths. It is perhaps the most important aspect of the sentencing of children that they must, if possible, be rehabilitated. In my view it could not be said in this case that the learned sentencing Judge gave no consideration to that question.
43 Ground 3 in my opinion is not sustained.
44 Ground 4 is to the effect that the learned sentencing Judge erred by not taking into account the applicant's age as a mitigating factor in the knowledge that the applicant would be transferred to an adult prison after reaching the age of 18 years. Again, it is apparent from what has been said above that the Judge did take into account the applicant's age and, of course, he would have known that the applicant would be transferred to an adult prison after he reached 18 years of age.
45 In my opinion this ground is not sustained.
46 Ground 5 of the appeal is that the learned sentencing Judge erred by not taking into account the applicant's plea of guilty and in not providing a discount in the sentence on account of the applicant's plea of guilty.
47 The Judge referred in his sentencing remarks to "your plea of guilty". On a second occasion in the course of his sentencing remarks and immediately before he imposed the sentence, he referred to "your youth, your antecedents and your plea."
48 The applicant however submits that the learned Judge erred in saying that the applicant's plea of guilty would be taken into account when he knew that a sentence of life imprisonment would commence from the date of sentencing and therefore, a discount for plea of guilty could not be granted. He contended that if a finite sentence had been imposed a credit could have been given for the plea of guilty.
49 In my view the plea of guilty was one of the factors which the learned Judge took into account in coming to what he considered to be the correct sentence. The fact that a specific discount for the plea of guilty cannot be taken from a life sentence does not indicate that it was not taken into account in deciding on that sentence. It is clear that the learned sentencing Judge did not overlook the plea of guilty.
(Page 12)
50 Ground 5 of the appeal is not sustained.
51 Ground 6 of the appeal is that the learned sentencing Judge erred by imposing a life sentence on the applicant knowing that there would be no deduction from the sentence for the time spent in custody on remand.
52 His Honour said towards the end of his sentencing remarks "I know also that you have been in custody since last November." The life sentence commenced from the date when it was imposed. The learned Judge knew that. Towards the end of his sentencing remarks his Honour referred to the possibility of sentencing the applicant to strict security life imprisonment, but said, "Given your age and the other matters that he (the prosecutor) has referred to, I think he was correct to take the course that he did."
53 It is apparent from his remarks that the Judge considered all the relevant matters, including the fact that the applicant had been in custody for nearly a year. It is not a sustainable ground of appeal to assert that the Judge "chose a life imprisonment sentence and therefore there was no deduction from the sentence for the applicant's remand time." That cannot be an error in the circumstances of this case when the Judge did not impose the maximum sentence of strict life security. The reason there is no deduction from the sentence for the applicant's time in remand is by virtue of the statutory provisions in force at the relevant time.
54 Ground 6 of the appeal has not been made good.
55 Although the application to leave to appeal in this case was not made until approximately eight years after the applicant was sentenced, the applicant says that due to his youth and emotional state at the time of his sentence, and in addition his lack of knowledge of the legal system, the delay can be excused. Whilst in prison he has undertaken tertiary studies. He says he became aware that he should have lodged an appeal when he realised there were valid grounds for doing so.
56 Having in mind the reasons which the applicant has given for his delay in lodging the application, I think leave should be granted for him to appeal, but that due to the fact that his grounds of appeal have not been made out, his appeal must be dismissed.
57 SCOTT J: I have had the opportunity of reading in draft the reasons to be published by Wallwork J. I agree with his Honour's reasons and I would also grant leave to appeal but dismiss the appeal.
(Page 13)
58 WHEELER J: I agree with the reasons of Wallwork J, and with the orders proposed by his Honour.
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