F (a child) v The State of Western Australia
[2004] WASCA 193
•27 AUGUST 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: "F" (A CHILD) -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 193
CORAM: TEMPLEMAN J
WHEELER J
MILLER J
HEARD: 10 AUGUST 2004
DELIVERED : 10 AUGUST 2004
PUBLISHED : 27 AUGUST 2004
FILE NO/S: CCA 105 of 2004
BETWEEN: "F" (A CHILD)
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :REYNOLDS J
File Number : 708-10/04
Catchwords:
Criminal law and procedure - Application for leave to appeal against sentence - Whether sentence manifestly excessive - Turns on own facts
Legislation:
Nil
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Applicant: Mr D P A Moen
Respondent: Mr R E Cock QC & Mr C G Astill
Solicitors:
Applicant: David Manera
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lowndes v R (1999) 195 CLR 665
Case(s) also cited:
"C" (A Child) v R (1995) 83 A Crim R 561
R v Boudelah (1991) 28 FCR 176
TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Wheeler J. It was for the reasons given by her Honour that I joined in the decision to dismiss the application. There is nothing I wish to add.
WHEELER J: This was an application for leave to appeal in respect of sentences imposed on the applicant on 22 June 2004. On 10 August the Court dismissed the application. These are my reasons for joining in that decision.
The offences in respect of which the applicant pleaded guilty, and the sentences imposed, were as follows:
Threat to kill – 12 months' detention
Deprivation of liberty – 6 months' detention
Assault occasioning bodily harm – 6 months' detention
The terms imposed in relation to the second two offences were to be served concurrently with the 12 month term imposed in respect of the first, and the applicant was made eligible for release on a supervised release order after serving 6 months of the 12 month term.
The sole ground of appeal is that the sentence imposed by the learned Judge was manifestly excessive, having regard to all the circumstances of the case.
The facts out of which these charges arose were as follows. On 7 February 2004, the applicant contacted the complainant. He was her ex‑boyfriend. The relationship between them had commenced early in the previous year and had been an intense relationship. Quarrels had developed between the applicant and the complainant from time to time, and it appears that by February 2004 the relationship had come to an end. The applicant was, in February 2004, 17 years of age and the complainant 18.
In their telephone conversation on 7 February, the applicant told the complainant that he was coming to her house and that he had a shovel with him which was to be used for the purpose of digging her grave. He advised her that if she did not come with him he would do something to her family, although he did not specify what. She left a note for her parents that she was being picked up by the applicant and left the house with him in his vehicle.
On arrival at a remote area, the applicant advised the complainant to "start digging". She got out of the vehicle and dug a hole about the size of her body. He told her to get into that hole. She initially refused, and he then came up behind her and placed his arm around her neck, flipping her onto the ground and causing her to hit her head on the ground which resulted in her biting her bottom lip. She suffered a cut lip, bruising and abrasions to her arm and neck. She bit the applicant's hand in order to escape. He again told her to get into the hole and she did so, lying down on her back. He threw a rock to the side of the hole which apparently missed her, and then walked away. She sat up and he told her to get into the vehicle. He then drove her home. Her deposition made on 8 February said that she was scared, crying, hyperventilating and screaming at various times during the course of the incident.
During the remainder of the day, the applicant continued to contact the complainant and arranged to collect her at 8 pm the same night. At about that time he collected her from her home and they made their way to Northbridge. They got out of the vehicle and as the complainant started to walk from the vehicle the applicant grabbed her around the neck and abused her, saying "It's not like you're going to see your family again, we are going back to dig your grave". He referred to her as a "dirty slut" and grabbed her in a headlock. A passer-by came to her aid and called the police. The applicant was located by police some time later and participated in a videotaped record of interview in which he said he had a loss of memory in relation to the events in question.
His Honour the learned sentencing Judge had a pre‑sentence report, a psychological report, a number of references, and a victim impact statement before him, as well as the complainant's deposition and the statement of material facts outlined by the State. In addition, his Honour heard briefly from the applicant's mother. He invited the applicant to speak in case there was anything which, in the applicant's view, called for additional mention or emphasis. It appears that the applicant took issue with a comment in the State's sentencing submissions to the effect that the complainant and her family had been distressed by inaccurate media publicity in relation to an event which had allegedly occurred subsequent to the offence. In the course of his remarks, the applicant said, "It's been four months. I believe that the family had some opportunity of closure to get on with their life …." His Honour cut the applicant off, pointed out that he should not underestimate the impact that conduct of the kind in question could have on somebody, and asked if there was anything else he wanted to add. His Honour was plainly concerned to prevent the applicant from harming his own case by detracting from observations which had been made by others about the remorse which the applicant was said to have experienced.
There were very significant mitigating features. The applicant was but 17 years of age and was repeating Year 12 with a view to obtaining a scholarship. He was a talented tennis player whose ambition was to play professionally but he had had an injury to his hand in about June 2003 which had very significantly affected his life and triggered depression in him. He was working hard in different jobs on a part‑time basis. He had a supportive family background. He had apparently had problems with anger management and with temper tantrums, associated with loss of memory, in the past. He had voluntarily attended a psychologist prior to the incident in question however, and he was seeing a psychologist for behavioural therapy, and appeared to understand the need to continue with that treatment. It appeared that he was genuinely unable to recall certain aspects of the events in question (although, as his Honour noted, he had apparently during the time in Northbridge recalled some important features of the incident occurring earlier on that day).
Finally, after discussions with the complainant, the State had suggested that the appropriate disposition would be a conditional release order rather than a period of immediate detention. Although nothing turns on it in this case, it seems to me, with respect, that counsel representing the State placed too much emphasis on the views of the complainant. While it is desirable that victims of crime have an opportunity to explain the effects of the offence upon them, and may appropriately wish to express their feelings towards the offence and the offender, a very great burden is placed upon a young person such as the complainant if there is any suggestion that the views which she expresses would have significant weight in determining how an offender was to be punished. While her comment and insight may be valuable, the task of determining whether an offender is likely to re‑offend, to the extent that that issue is relevant, and the task of determining what is the appropriate punishment, is one which is left for good reasons to those who can deal more dispassionately with the issues involved.
The sole ground of appeal is that the sentence imposed by the learned Judge was manifestly excessive, having regard to all the circumstances of the case. In particular, it was strongly argued before us that the sentence which was imposed demonstrated that his Honour must have given insufficient weight to the goal of rehabilitation of the applicant. It was submitted, by reference to authorities which it is not in my view necessary to list, that in the case of a young offender the primary aim is generally not one of deterrence and retribution, but of rehabilitation, and that therefore considerations of punishment and general deterrence may properly be largely discounted in favour of individualised treatment directed to rehabilitation. It was submitted that, in the present case, rehabilitation could be most appropriately effected in the community.
Accepting that the appropriate sentencing principles are those referred to by the applicant's counsel, nevertheless, the result does not follow that juvenile offenders - even those with no previous record and good personal circumstances - should never receive custodial sentences. Plainly, as with adult offenders, there is a need to have regard to the circumstances of the offence as well as the circumstances of the offender. These considerations are weighed differently in respect of juvenile offenders, but regard must be had to each.
His Honour's reasons are very detailed, and I do not do them full justice in this summary, but they were broadly to the following effect. His Honour outlined the circumstances leading up to the offence, and made the observation, which was clearly correct, that there is no place or justification at all for the use of physical force or threats or intimidation by a disgruntled young man against an ex-girlfriend. His Honour detailed the circumstances of the offence and observed, again in my respectful view correctly, that all three of the offences constituted extremely serious criminal behaviour. His Honour regarded the factual circumstances of the threat to kill as being such as to put it in the worst category of its kind, and that was a view which was open to him. His Honour referred to considerations of personal and general deterrence and to the effect which offending of this kind could reasonably be expected to have on the victim of it.
His Honour then turned to the statutory framework and noted the emphasis upon rehabilitation contained in the Young Offenders Act 1994. His Honour evaluated the applicant's personal circumstances in detail. He did not accept that the applicant was as remorseful as he should have been, but did accept that he was remorseful. He referred to the applicant's youth, to his references, to his work and school circumstances and to the ambitions and injury I have described. He referred also to the fact that the applicant was diagnosed with depression in June and had been getting help for his anger management problem.
His Honour recognised that a sentence of detention was one of last resort, but considered that the totality of the criminal behaviour in these circumstances was such as to require significant weight to be given to
questions of deterrence, and in particular to general deterrence. His Honour then expressed the view that detention, although a sentence of last resort, was the only appropriate sentencing option in the circumstances. It was clear that in arriving at the length of the sentence, his Honour had taken account of the principle that if a sentence of detention was to be imposed, it should be for the shortest possible time.
The principles which govern the circumstances in which this Court can review a sentence are the same in respect of juvenile offenders as in respect of adult offenders. That is, a Court of Criminal Appeal may not substitute its own opinion for that of a sentencing Judge merely because it would have exercised its discretion in a different manner: Lowndes v R (1999) 195 CLR 665 at 671‑672. Error must be demonstrated before there can be an interference with the sentence imposed. In the present case, his Honour's reasons disclose no error. He plainly took account of all relevant considerations and his reasons reflect a careful balancing of them. In my view, the decision that the circumstances of the offences were such as to require the imposition of the last resort sentence of detention, notwithstanding the applicant's very favourable antecedents, was a decision which was open to him on the facts as I have described them.
MILLER J: I have had the opportunity of reading in draft the reasons delivered by Wheeler J. I agree with those reasons. They sufficiently set out the reason why I joined in the dismissal of the application for leave to appeal. There is nothing I wish to add.
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