Harris v The State of Western Australia
[2005] WASCA 147
•11 AUGUST 2005
HARRIS -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 147
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 147 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:89/2005 | 4 AUGUST 2005 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 11/08/05 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | NATHANIEL JAMES HARRIS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Sentencing Repeat offender Mandatory sentence of 12 months' detention for third offence of home burglary Appellant under 18 for previous offences, now appearing as an adult offender Jurisdiction of District Court to make a declaration under s 189(3) Young Offenders Act 1994 |
Legislation: | Children's Court of Western Australia Act 1988 (WA), s 3, s 19(1), s 19(2), s 19(9) Criminal Code (WA), s 400(3), s 401(4) Young Offenders Act 1994 (WA), s 3, s 4, s 44(1), s 189(2), s 189(3) |
Case References: | R v Mackay, unreported; CCA SCt of WA; Library No 970689; 10 December 1997 R v P (A Child) (1997) 94 A Crim R 593 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HARRIS -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 147 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KENNEDY CJDC
File No : IND 627 of 2005
Catchwords:
Criminal law and procedure - Sentencing - Repeat offender - Mandatory sentence of 12 months' detention for third offence of home burglary - Appellant under 18 for previous offences, now appearing as an adult offender - Jurisdiction of District Court to make a declaration under s 189(3) Young Offenders Act 1994
(Page 2)
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 3, s 19(1), s 19(2), s 19(9)
Criminal Code (WA), s 400(3), s 401(4)
Young Offenders Act 1994 (WA), s 3, s 4, s 44(1), s 189(2), s 189(3)
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr C L J Miocevich
Respondent : Mr B Fiannaca
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
R v Mackay, unreported; CCA SCt of WA; Library No 970689; 10 December 1997
R v P (A Child) (1997) 94 A Crim R 593
Case(s) also cited:
Nil
(Page 3)
1 JUDGMENT OF THE COURT: On 26 April 2005 the appellant was convicted in the District Court of Western Australia, on his plea of guilty, of one count of aggravated burglary. The burglary was committed in respect of a place ordinarily used for human habitation ("home burglary").
2 The appellant had previously been convicted on charges of home burglary. On 6 June 2003 he was convicted of three counts of home burglary and on 30 November 2004 he was convicted of one count of home burglary. Consequently, he was a repeat offender for the purposes of s 400(3) of the Criminal Code (WA) ("Code"). Section 401(4) of the Code requires the Court, in the case of a repeat offender who commits another home burglary, to sentence that offender to at least 12 months' imprisonment.
3 However, ss 189(2) and (3) of the Young Offenders Act 1994 (WA) ("Act") provide that:
"(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 A "young person" is defined in s 3 of the Act to mean:
"(a) a person who has not reached the age of 18 years; or
(b) a person to whom this Act applies because of section 4".
- Section 4 of the Act provides that:
(Page 4)
- "If a person commits or allegedly commits an offence before reaching the age of 18 years, this Act applies to the person as a young person for purposes connected with that offence or any order that was made in dealing with the person for that offence."
- There is no definition of the term "special circumstances".
5 The appellant was a "young person" for the purposes of each of his previous convictions of home burglary. On 6 June 2003, when convicted in respect of the first three counts of home burglary, he was 17 years old. When he committed the offence of home burglary of which he was convicted on 30 November 2004 he was still only 17 years old (the offence was committed on 2 October 2003 and was dealt with more than a year later). His counsel submitted that, if special circumstances existed (and she asserted that they did), it was consequently open to the Court to make, and she asked the Court to make, a declaration under s 189(3) of the Act in respect of the convictions on 6 June 2003 or that on 30 November 2004 (the two-year period provided for by s 189(2) not having expired, in either case, by the time of his sentencing for the current offence) so that, it was submitted, the Court would not have to impose the sentence which would otherwise be required by s 401(4) of the Code (see, as regards the relationship between s 189 of the Act and s 400 of the Code, R v P (A Child) (1997) 94 A Crim R 593 and R v Mackay, unreported; CCA SCt of WA; Library No 970689; 10 December 1997).
6 Counsel for the respondent opposed the application. He contended that there were no special circumstances and, more fundamentally, that the District Court lacked the jurisdiction to hear the application. As to the latter proposition, he submitted that the appellant was no longer a young person as defined (he was then 19 years old and had been so at the time of the commission of the offence for which he was to be sentenced) and that, because the Court was sentencing him as an adult offender, s 189(3) had no application to him. He pointed, in this respect, to the fact that the word "court" is defined in s 3 of the Act to mean, unless the contrary intention appears, "the Children's Court or other court dealing with a young person for an offence" and said that this definition was applicable to the use of that word in s 189(3).
7 The sentencing Judge found that she lacked the jurisdiction to make the declaration sought. She said that this was because she did not fall within the definition of "court", as she was not sitting as a member of the Children's Court and was not dealing with a "young person" as defined in the Act.
(Page 5)
8 There are two grounds of appeal. They are that the sentencing Judge erred in finding that she was not sitting as a court "dealing with a young person" for the purposes of an application under s 189(3) of the Act and that she erred "by failing to turn her mind to exercising her discretion to seek approval to sit as a Judge of the Children's Court or refer the application under s 189(3) of the Young Offenders Act to the President of the Children's Court".
9 Consideration of these grounds requires some attention, also, to the provision of the Children's Court of Western Australia Act 1988 (WA) ("Children's Court Act") in order to understand the interaction between the two Acts.
10 Sections 19(1), (2) and (2a) of the Children's Court Act, dealing with the criminal jurisdiction of the Children's Court, read as follows:
"(1) The Court has exclusive jurisdiction to hear and determine a charge of an offence alleged to have been committed by a child.
(1a) …
(2) Notwithstanding that a person has attained the age of 18 years the jurisdiction of the Court extends, and the provisions of this Act apply, to proceedings in respect of an offence committed, or allegedly committed, by the person before attaining the age of 18 years.
(2a) In subsection (2), the reference to proceedings in respect of an offence includes proceedings relating to an order that the Court made when it dealt with the offender upon finding the offender guilty of the offence."
11 Section 19(9) of the Children's Court Act provides that:
"Where a child is before the Supreme Court or the District Court, that court has all the powers of the Children's Court of Western Australia in all respects as if the child had been before that Court."
12 A "child" is defined by s 3 of that Act to mean:
"(a) any boy or girl under the age of 18 years;
(Page 6)
- (b) in the absence of positive evidence as to age, any boy or girl apparently under the age of 18 years; and
(c) any boy or girl dealt with under section 19(2)".
13 It is plain from the quoted provisions that, when a child is before the District Court, that Court has all of the powers of the Children's Court in all respects as if the child had been before that Court and that, for this purpose, a "child" includes a person who has turned 18 and:
(a) is being dealt with in respect of an offence committed before he or she reached that age; or
(b) is being dealt with in proceedings relating to an order that the Court made when dealing with the offender upon finding the offender guilty of an offence committed before he or she reached that age.
14 However, it seems to us that, when a court is asked by an adult offender to make a declaration under s 189(3) of the Young Offenders Act, the Court is not dealing with a child as defined in s 3 of the Children's Court Act, read with s 19(2) thereof, and nor is it dealing with a person in relation to an "order" made by a court when dealing with the offender upon finding him or her guilty of an offence. Rather, it is asked to make a declaration concerning the consequences of the fact of the conviction itself. Accordingly, it is not given the necessary jurisdiction to make such an order by the provisions of s 19(9) of the Children's Court Act.
15 If that is so, then the District Court can only derive jurisdiction from the provisions of s 189(3) itself. Counsel for the appellant submits that this section (when read together with the definitions of "young person" and "court" in s 3 of the Act and the provisions of s 4 thereof) does confer that jurisdiction upon the District Court. He submits that, when considering whether or not to make a declaration provided for by s 189(3) of the Young Offenders Act, the Court is doing so "for purposes connected with [the] offence" or offences committed while the appellant was still a child and, hence, that the Act applies as if the person concerned was still a young person: par (b) of the definition of "young person" read with s 4 of the Act.
16 The difficulty with this proposition is that, if the definition of "court" is to be applied to the use of that word in s 189(3), then the Court, if it is the District Court or the Supreme Court, must be one which is dealing with a "young person" for an offence before it can make the declaration
(Page 7)
- provided for. There is no doubt that the Court, in this case, was not dealing with a "young person", as defined, for an offence. It was dealing with an adult in respect of an offence committed by him as an adult. That remained so even if the declaration sought in respect of that person was one in relation to, and perhaps for purposes connected with, an offence or offences committed by that person when less than 18 years old.
17 That said, an application of the definition to s 189(3) would have the consequence that, when dealing with a person who is now an adult, a District Court or Supreme Court could not make a declaration under that section, whereas the Children's Court could do so. That is because the words "dealing with a young person for an offence" apply, as we read the definition of "court" only to the "other court" and not to the Children's Court (a construction which is supported by the context in which the word "court" is used in other sections of the Young Offenders Act, for example, s 44(1)). This would be a surprising result, given that the obvious intention of the legislature, in enacting s 19(9) of the Children's Court Act, was to give to the Supreme and District Courts all of the powers of the Children's Court (albeit that section was drafted upon the assumption that those powers would only be needed when a child, as defined, was before one of those Courts). It is also probable that the legislature contemplated that one of the consequences of making a declaration under s 189(3) would be to affect the orders which could be made in the case of a subsequent offence, whether committed by a person who was still a young offender or by one who had, by the time of commission of the subsequent offence, become an adult. It is difficult to imagine that the legislature could have contemplated that the Children's Court (which would have no jurisdiction in respect of the adult offender) could make the declaration but that the District or Supreme Court could not do so.
18 It consequently seems to us that this is a circumstance in which "the contrary intention appears" and that the definition of "court" was not intended to be applied to the use of that word in s 189(3). Rather, the word "court", in that section, appears to us to have been intended to refer to the Court exercising jurisdiction in respect of the offender at the time of the application, whether that Court might be the Children's Court, the District Court or the Supreme Court.
19 We are consequently of the opinion that the District Court had the necessary jurisdiction and that the sentencing Judge erred in concluding that she could not make a declaration of the kind sought.
(Page 8)
20 Counsel for the respondent contended that, if we were to arrive at this conclusion, we should nevertheless decline to uphold the appeal because there were no special circumstances that could have justified the making of a declaration under s 189(3) in respect of any of the prior convictions for home burglaries. It is, in our respectful opinion, difficult to see what special circumstances might be found in this case, at least on the limited information which is presently before us (and the mere fact that, absent a declaration, an offender would be subject to the provisions of s 401(4) of the Code could not, of itself, amount to a special circumstance as the plain intention of the legislature would otherwise be subverted). However, the question whether or not such circumstances exist is one which the legislature has reserved for the opinion of the sentencing court, which has made no final determination in that regard. Consequently, the appropriate course seems to us to be that the matter should be remitted to the District Court in order to enable the sentencing Judge to reach a final conclusion in that respect in the knowledge that she has the necessary jurisdiction.
21 We would accordingly uphold the appeal, set aside the sentence imposed by the sentencing Judge and remit the matter to the District Court for reconsideration in the light of these reasons. We should add that it is unfortunate that the solicitors for the appellant made no application to expedite the appeal, given its obvious urgency.
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