JA (a child) v The State of Western Australia
[2008] WASCA 70
•27 MARCH 2008
JA (A CHILD) -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 70
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 70 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:11/2008 | 13 MARCH 2008 | |
| Coram: | MARTIN CJ WHEELER JA MILLER JA | 26/03/08 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JA (A CHILD) THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal Sentence Young offender Reckless driving Prior record Alternatives to imprisonment Deterrence |
Legislation: | Criminal Code, s 401 Young Offenders Act 1994 (WA), s 7, s 46 |
Case References: | A Child v The State of Western Australia [2007] WASCA 285 Ainsworth v D (A Child) (1992) 7 WAR 102 AM (A Child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996) B (A Child) v The Queen (1995) 82 A Crim R 234 C (A Child) (1995) 83 A Crim R 561 Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 KSB (A Child) v The State of Western Australia [2004] WASCA 296 MC (A Child) v The Queen [2003] WASCA 205 R v BWP [2006] 1 SCR 941 R v DP (A Child) [2003] WASCA 92 R v Radich [1954] NZLR 86 R v S (A Child) (1989) 31 SASR 263 Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343 The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51 Vagh v The State of Western Australia [2007] WASCA 17 Yorkshire v The Queen (Unreported, WASCA, Library No 7169, 20 June 1988) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JA (A CHILD) -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 70 CORAM : MARTIN CJ
- WHEELER JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : Reynolds P
File No : CC 5854 of 2007
Catchwords:
Criminal law - Appeal - Sentence - Young offender - Reckless driving - Prior record - Alternatives to imprisonment - Deterrence
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Legislation:
Criminal Code, s 401
Young Offenders Act 1994 (WA), s 7, s 46
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr L C Carter
Respondent : Mr B Fiannaca SC
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
A Child v The State of Western Australia [2007] WASCA 285
Ainsworth v D (A Child) (1992) 7 WAR 102
AM (A Child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996)
B (A Child) v The Queen (1995) 82 A Crim R 234
C (A Child) (1995) 83 A Crim R 561
Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370
KSB (A Child) v The State of Western Australia [2004] WASCA 296
MC (A Child) v The Queen [2003] WASCA 205
R v BWP [2006] 1 SCR 941
R v DP (A Child) [2003] WASCA 92
R v Radich [1954] NZLR 86
R v S (A Child) (1989) 31 SASR 263
Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
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The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51
Vagh v The State of Western Australia [2007] WASCA 17
Yorkshire v The Queen (Unreported, WASCA, Library No 7169, 20 June 1988)
(Page 4)
1 MARTIN CJ: I agree with Wheeler JA that this appeal must be dismissed for the reasons which she gives. However, I wish to add a few observations of my own.
2 The child, the subject of this appeal, has had a tragic life. Her father died in 1997 when she was 3 years old. She has one sister and seven brothers. It appears that her mother has had difficulty coping with her. At the time she appeared in the Children's Court in November 2007, three of her elder brothers were serving periods of imprisonment or detention.
3 Her attendance at school has been sporadic. She has been offending for a number of years, and has been detained in custody a number of times over those years. On each occasion, she has reoffended soon after her release. She is still only 13. The offences which resulted in the most recent order for detention were committed when she was 12.
4 Because of the limited facilities available to the Court of Appeal when hearing appeals of this kind, it was necessary for the child to be placed in the dock in the courtroom while the appeal was heard. She could barely be seen above the rail of the dock. She must have had difficulty seeing above the dashboard of the stolen Toyota Landcruiser which she drove at 140 kms per hour on 16 May 2007 driving on occasions on the wrong side of the road for the purposes of evading police (although this was not one of the offences for which she was most recently dealt with). She had to use pillows and a blanket to see over the dashboard of the car which she stole during her most recent escapade.
5 After suffering tragedy early in life, the child's life is now taking on a tragic trajectory of its own. But the potential for tragedy is not limited to her. Wheeler JA has recounted the events which followed the appellant's most recent theft of a motor vehicle. It is a miracle that neither she, nor her younger brother or cousin, nor innocent members of the community were not seriously injured or killed. Those consequences are likely if this child's pattern of offending behaviour is not corrected. The community cannot be expected to accept any significant risk of repetition of conduct of this kind. So, while the rehabilitation of a juvenile offender must always be a significant consideration in sentencing, there will be cases, and this is one, when the protection of the community is also a vital consideration.
6 The protection of the community will also be enhanced in this case if the relevant agencies, namely, the Department for Child Protection and Juvenile Justice, work together to develop a comprehensive programme
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- designed to encourage the child to overcome her pattern of antisocial behaviour and reduce the risk of further offending. Ideally, that programme should be designed to include components while she remains in detention, and intensive components following her release from detention. Such a programme will be essential if this child is to have a prospect of developing into a law-abiding member of the community. If that does not occur, further tragedy, perhaps involving innocent members of the community, can be predicted.
7 WHEELER JA: The appellant was born on 2 November 1994. She is now, therefore, 13 years of age. She was convicted, by her own pleas of guilty, of seven offences and sentenced in the following manner:
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(Count 1) |
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(Count 2) |
(Counts 2 - 6 inclusive were on 14/10/07) |
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(Count 3) |
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(Count 4) |
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(Count 5) |
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(Count 6) |
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(Count 7) |
(4/10/07) |
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8 The sentences of detention were ordered to be served concurrently and were backdated to 11 December 2007. The appellant now appeals
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- against the sentence and seeks an order that a conditional release order be imposed in lieu of detention.
9 The relevant facts surrounding the commission of the offences are as follows. In the late afternoon of Sunday 30 September 2007, the appellant and her 12-year-old co-offender were in Higginsville Parade in Pearsall. They walked past the complainant's residence and the appellant saw a black handbag lying on the bed. The co-offender removed the wire screen from an open window and the appellant entered the premises while the co-offender kept watch. The appellant took the handbag from the bed and left the premises through the window. The pair then removed a mobile phone and approximately $135 from the handbag before dropping the handbag and the remaining property in some bush nearby. These facts gave rise to count 1.
10 The pair then made their way to the Warwick train station where they were stopped by some public transport guards. Police attended and the offenders later took part in a video record of interview in which the appellant readily admitted her involvement in the offence and conceded that it was wrong to enter another person's home and steal property. She was released after signing a bail undertaking which contained a condition that the appellant would appear in the Children's Court on 4 October 2007. The appellant failed to appear and a warrant for her arrest was issued (count 7). When confronted by authorities at the time of her arrest, the appellant explained that "she just simply didn't want to go to court" (AB 90), although the learned sentencing judge found that the reason for the appellant's failure to attend was that she was "a bit too scared" (AB 120).
11 The offences giving rise to counts 2 to 6 took place on Sunday 14 October 2007. During the morning, the appellant, in the company of her 10-year-old brother and 12-year-old cousin, was standing at a bus stop in Elderberry Drive in South Lake, with the intention of catching a bus to Fremantle. The group noticed the occupants of a residence situated on an intersecting road leave the residence in their vehicle. The appellant then walked to the premises, gained entry through a front window and stole a cash box containing foreign currency from the master bedroom. The appellant left the house with the cash box before disposing of it in some bushes (count 2).
12 The group then caught a bus to Adventure World in Bibra Lake, where they spent some time. They left Adventure World at approximately 2.00 pm and made their way to a nearby carpark where the appellant gained entry to a Holden Commodore motor vehicle by reaching through
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- an open window and unlocking a door. The appellant then used a screwdriver to start the vehicle and invited the co-offenders to get in, which they did. The appellant's brother sat in the front passenger seat and her cousin sat in the rear passenger seat. The appellant then placed two pillows and a blanket on the driver's seat of the vehicle so as to enable her to see over the steering wheel, and then proceeded to drive the vehicle to Willagee (count 3).
13 At approximately 3.00 pm, a police vehicle sighted the appellant driving in a north-easterly direction on Lucas Street in Willagee. The police followed the appellant and activated their vehicle's emergency lights on Bartlett Street. The appellant noticed the police and increased her speed, before turning right onto Bawden Street. The appellant's brother then threw a bag of coins out of the front passenger window while the police were approximately 40 metres behind the car. The appellant turned into a cul-de-sac known as Lodwick Street. At the end of the cul-de-sac, the appellant drove over a steep kerb and through two bollards onto Clause Street. The police continued to pursue the appellant who drove at a speed of 80 kilometres per hour down Archibald Street, which had a 60 kilometres per hour speed limit. The appellant then turned right onto North Lake Road and accelerated heavily to approximately 120 kilometres per hour, some 50 kilometres per hour over the speed limit. The appellant then drove through a red light at a traffic-controlled intersection without slowing down or making an attempt to warn other road users. There was a medium flow of traffic at the intersection at the time. The appellant continued to drive in a southerly direction before turning left onto South Street where the appellant became stuck at an intersection behind a vehicle. In response, the appellant mounted the kerb and drove along the footpath for approximately 40 metres and then drove back onto the roadway. There was a heavy flow of traffic in all three lanes. Police lost sight of the vehicle and were forced to abort the pursuit. The pursuit gave rise to counts 4 to 6.
14 A short time later the offenders were apprehended on foot on Progress Drive in Bibra Lake and the stolen vehicle was located nearby. The appellant was arrested and taken to the Palmyra police station, where she refused to participate in a video record of interview. Nevertheless, it seems that she made certain admissions in custody.
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Appellant's personal circumstances and criminal history
15 A number of reports were made available to the learned sentencing judge which detailed the appellant's difficult upbringing and personal circumstances.
16 The appellant is of Aboriginal descent. Her father died in a car accident when the appellant was 3 years old. The appellant and her eight siblings have since been raised solely by their mother. At around the time of the offences, three of the appellant's siblings were serving periods of detention or imprisonment. The appellant herself had a significant criminal history for an individual of her young age, which dated back to 2005. Her prior convictions include 23 convictions for burglary, or aggravated burglary, nine for stealing, five for motor vehicle theft and a number for driving without a valid licence. There was, in addition, a prior, and very serious, episode of reckless driving, in which the appellant drove a Toyota Landcruiser for a period of over 50 minutes (ceasing only when a tyre became flat) in a manner which involved high speed, dangerous overtaking, and failure to keep to the appropriate side of the road. That driving involved a police pursuit. She had been sentenced for it less than 4 months before the offences the subject of counts 3 to 6.
17 A court report dated 12 November 2007 stated that the appellant's negative conduct is often assisted and condoned by both her extended and immediate family members. On 29 November 2007, the learned sentencing judge granted an adjournment to allow the Department for Child Protection (Department or DCP) to investigate a comprehensive "wrap-around" programme for the appellant, in lieu of detention. A supplementary report dated 7 December 2007 revealed that an alternative care arrangement for the appellant was being explored; namely, the possibility that the appellant would spend time in Leonora with the former partner of her deceased paternal uncle. His Honour granted a further adjournment to allow this option to be fully explored.
18 On 17 December, the learned sentencing judge was informed that the alternative care arrangement was no longer viable. The Department had concerns that the appellant might reoffend if she were to return to her mother's care and considered that the only remaining option was to look at the possibility of "a 24/7 wrap-around set up" (AB 118). The setting-up of such a programme would require at least a further four weeks. So far as I can glean from the transcript, a "24/7" arrangement would involve finding a sufficient number of appropriate persons to ensure that she was supervised every moment of every day. Such an arrangement could work
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- only with the co-operation of the appellant and, if she lived with her mother, the appellant's mother. There were no other suitable relatives with whom the appellant could live, and past experience suggested that if placed elsewhere, she would simply abscond. His Honour formed the view that it was not appropriate to adjourn the matter for further reports and the appellant was sentenced.
Sentencing remarks
19 In his sentencing remarks, his Honour referred to the appellant's extreme youth, guilty plea and difficult personal circumstances. His Honour considered that:
[A]s weighty as they [the mitigating factors] are in combination, they are outweighed by the seriousness of your offending and the need for personal and general deterrence, being mindful that personal and general deterrence … needs to be tempered …
I'm forever mindful that immediate detention is the sentence of last resort and that great weight needs to be given to your extreme youth and rehabilitation …
In my view, in each case the seriousness of the offence and its factual circumstances and the need for personal and general deterrence outweighs everything else in combination such that immediate detention is the only appropriate sentence. (AB 125)
20 In relation to his decision to not allow a further adjournment to devise a "wrap-around" action plan, his Honour said, "[i]t would be good, but for the moment I don't think that your attitude is right" (AB 127). Earlier in the remarks, the learned sentencing judge had said:
… I think at the moment that your attitude isn't right, that you are not working as hard as what you should and hard as you can to stop your offending. I have said that having looked at a whole lot of material.
… I mention all of this … not because … your record aggravates the sentence, but I mention it all to simply but importantly show that at the moment it's my view that your attitude is seriously lacking in your preparedness to try harder … and work with people towards your own rehabilitation. (AB 125, 127)
Grounds of appeal
21 There are four grounds of appeal. The first ground contends that the learned sentencing judge erred in refusing to further adjourn the sentencing to develop plans for a "wrap-around" arrangement. The second and fourth grounds state that his Honour erred by concluding that
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- the importance of rehabilitation was outweighed by the seriousness of the offending and the need for deterrence and therefore the appellant contends that immediate detention was not the only appropriate sentence. Ground 3 contends that the learned sentencing judge erred in his findings about the appellant's attitude.
Ground 1
22 The appellant submits that his Honour ought not to have passed sentence without being provided with further material in relation to the wrap-around programme. The ground is analogous to one which complains that a sentencing judge failed to obtain a pre-sentence report. In Vagh v The State of Western Australia [2007] WASCA 17 [58], Roberts-Smith JA said that, at most, such a ground would reinforce a submission that the sentencing judge was not sufficiently advised of the facts. The relevant question thrown up by this ground is not, as the appellant's counsel put it, whether his Honour had all of the information he had initially sought; rather, it is whether his Honour had sufficient information to proceed to sentence.
23 I would note that s 7(k) of the Young Offenders Act 1994 (WA) (the Act) requires a young offender to be dealt with "in a time frame that is appropriate to the young person's sense of time". It was important, therefore, that his Honour delay sentencing no longer than was strictly necessary.
24 It is necessary, in dealing with this ground, to consider the material that was before his Honour. His Honour heard from the representatives of the Juvenile Justice Division, and DCP, as well as from counsel. In addition, he had a number of written reports. Perhaps most significantly, I note the report dated 12 November 2007 which relevantly stated:
[The appellant's] family had been an active case with the Strong Families programme since February 2005; however it can be viewed that little has eventuated through this process …
Alternative care arrangements have been tried for [the appellant] in the past, namely when she resided with her eldest brother at Gnangara, however [the appellant's] most stable placement is with her mother and siblings at their residence in South Lakes ...
[The appellant's] situation is also monitored through the Department for Child Protection, and she is classified as an 'open case' …
[The appellant's mother] appears to have little influence over [the appellant's] conduct. Factors that were taken into consideration when
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- assessing [the appellant] for her last Supervised Release Order included that [the appellant's] past offending behaviour was often linked to her mother choosing to visit extended family. On such occasions [the appellant's mother] would participate in alcohol consumption and as a result of this she would be unable to effectively supervise her daughter. As such, clear instructions were provided to [the appellant] and her mother that [the appellant] should not associate with extended family who reside 'north of the river', however her mother again transported her to these relatives when it is understood she consumed alcohol … On this day, [the appellant] joined up with her cousin … and committed an offence …
[The appellant] was arrested and bailed … [The appellant] and her mother were spoken to by the author almost daily when efforts were made to encourage her to appropriately address her outstanding Court warrant … It was evident that [the appellant's mother] had no ability to enforce her daughter to comply with such requests.
… Considerable efforts were made by personnel at Lakelands Senior High School to ensure that [the appellant's] integration to the school was as positive as possible when she was released on her first Supervised Release Order in April 2007. At this placement, considerable efforts were made by all involved to provide a supportive and streamlined return to school … [A]fter the initial week she failed to return to school. Efforts to address this concern were made by Education Dept staff, Community Justice Services, and Dept for Child Protection however [the appellant] reoffended and was returned to custody prior to this matter being resolved.
An alternative option was arranged for [the appellant] with regard to her release on her second Supervised Release Order. She was assigned full-time aides/youth workers, and this was the most successful educational experience for [the appellant]. Unfortunately [the appellant] self-terminated this placement after she was charged with a further offence.
25 The supplementary report dated 7 December 2007 set out the preliminary arrangements that had been made for a "wrap-around" programme. The report stated that the appellant would be provided with a full-time mentor/aid and that she would have access to available services within the community, including an Aboriginal youth service. The appellant's mother had also been allocated a parent support worker.
26 While none of the material before his Honour specifically addressed the details of a "24/7 wrap-around", I am satisfied that it was open to his Honour to consider that, having regard to the appellant's offending in the past, and her very limited co-operation in her rehabilitation, a non-custodial disposition was not open. The report of 12 November outlined a history of minimal engagement with provided services and
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- personnel. Services provided to that date had, plainly, not prevented her from offending. It follows that ground 1 must fail.
Ground 2
27 In relation to ground 2, the appellant submits that, on a proper construction of the Act, general and personal deterrence are excluded as sentencing considerations in the case of youthful offenders. The appellant advances three reasons in favour of this interpretation:
First, community protection and deterrence (general and specific) are different purposes of sentencing. Although there may be no incompatibility between deterrence (general and specific) and community protection, they are distinct purposes.
Second, in the context of the Act, community protection means protection from the child being sentenced - in both the short and long term.
Third, it is submitted that legislative intent to authorise general deterrence as a relevant factor should not be inferred in circumstances when the Parliament has enacted a detailed set of principles and deterrence is not mentioned. That is, it is submitted that Parliament - in not mentioning deterrence in the Act - has deliberately refrained from retaining it as a relevant factor. (AB 20)
28 The Act relevantly provides:
7. The general principles that are to be observed in performing functions under this Act are that -
…
- (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;
…
(d) the community must be protected from illegal behaviour;
…
(h) detaining a young person in custody for an offence … should only be used as a last resort and, if required, is only to be for as short a time as is necessary;
…
- (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;
- … 46. (1) When dealing with a young person who has been found guilty of an offence, the court, in disposing of the matter, is to apply -
(a) the principles applying generally for disposing of charges of offences, except as those principles are modified by this Act; and
(b) the general principles of juvenile justice.
30 However, both general and personal deterrence still have a role to play, albeit, generally, a tempered role: The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51 [16]; C (A Child) (1995) 83 A Crim R 561, 564; KSB (A Child) v The State of Western Australia [2004] WASCA 296 [11]. In AM, the court was of the view that:
General deterrence as well as particular deterrence must not be lost sight of, but it is particularly the case for young offenders that their rehabilitation is regarded as offering the best guarantee against their continuing offending, and therefore for the protection of the community from their lawless behaviour, where that is seen as a real possibility. (12)
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31 Thus, where rehabilitation seems unlikely, or where the offending or course of offending is serious, or the character and antecedents of the offender justify it, deterrence becomes a significant consideration once more: R v DP (A Child) [2003] WASCA 92 [57]; Ainsworth v D (A Child) (1992) 7 WAR 102, 117; MC (A Child) v The Queen [2003] WASCA 205 [20].
32 In MC, one of the proposed grounds of appeal asserted that general deterrence should not have any role to play in the sentencing of young offenders, save in exceptional circumstances. In her reasons for refusing leave in relation to that ground, McLure J (with whom Steytler and Pullin JJ agreed) said:
Section 7(d) of the Actis to be contrasted with its South Australian equivalent. Section 7(e) of the Children's Protection and Young Offenders Act 1979 (SA)requires the court in sentencing to consider:
' … where appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.'
…
Unlike the South Australian legislation, s 7(d) is not confined to community protection from the acts of the child being sentenced. If the Parliament of Western Australia intended to exclude general deterrence as a relevant consideration in the sentencing of young offenders, it is to be expected that such an intention would be clearly and expressly manifested. It is not.
…
The Act provides for flexibility in the exercise of the sentencing discretion to achieve the statutory purposes and objectives which may sometimes be in tension, such as the interests of the offender and those of the community. [15], [17], [20]
- This passage forms part of the ratio of that case. The court may depart from an earlier decision, if convinced that it is wrong, or that there is some other compelling reason why it should no longer be followed: Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343.
33 Far from concluding that it is wrong, in my respectful view, the statement of the law in MC is correct. It is consistent with what I would take to be the plain meaning of s 46(1)(a). I am fortified in this view by the second reading of the Young Offenders Bill 1994 (WA), in which the then Attorney-General said:
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- This Government sees juvenile justice as sharing the same three goals as the broader criminal justice system. These are -
To protect the public;
- to ensure the fair treatment of those involved in the criminal justice process; and
to minimise the incidence of crime.
34 It is well established that deterrence has a role to play in minimising the incidence of crime, to a greater or lesser extent, and, in that way, protecting the public. The way in which it does so was explained in R v Radich [1954] NZLR 86, in which the New Zealand Court of Appeal said:
[O]ne of the main purposes of punishment … is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. (587)
35 I respectfully agree with the comments of the New South Wales Court of Criminal Appeal in Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 that "[i]t would have been surprising indeed if such a fundamental principle of sentencing, inherited from the ages, had been repealed" without express words to that effect (378). There is nothing in the language or purpose of the Act to suggest that deterrence must be completely excluded as a sentencing consideration when dealing with youthful offenders.
36 Finally, I mention two authorities from other jurisdictions upon which counsel for the appellant particularly relied. One was R v S (A Child) (1989) 31 SASR 263. That case concerned the Children's Protection and Young Offenders Act 1979 (SA). It is distinguishable for the reasons given by McLure J in MC. The other was R v BWP [2006] 1 SCR 941. In that case, the Supreme Court of Canada was concerned with a statute which included a provision which, subject to exceptions, expressly excluded general sentencing principles (s 50 Youth Criminal
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- Justice Act,SC 2002); that is, the relevant provision was almost precisely the opposite of s 46(1)(a) of the Act.
37 Once it is accepted that deterrence (both personal and general) is a relevant factor in the sentencing of young offenders, there is no basis for concluding that his Honour gave disproportionate weight to that principle. The serious nature of the appellant's driving is obvious.
38 While the burglaries were not, considered in isolation, at the higher end of the range of seriousness, they were committed in circumstances where the appellant had already been sentenced as a "third striker" on an earlier occasion, and at a time when she was serving a supervised release order. The second of the burglaries was also committed whilst the appellant was on bail. By reason of s 401(4) of the Criminal Code, his Honour was required to impose a minimum term of 12 months' detention. Having regard to the appellant's antecedents and the matters dealt with in relation to grounds 1 and 3, he was not in error in requiring it to be served at once.
Ground 3
39 The third ground of appeal complains that, in finding that the appellant's attitude "isn't right", his Honour had effectively concluded that continued attempts at rehabilitation were not worthwhile. The appellant submits that, in arriving at this finding, his Honour failed to have regard to material before the court which indicated that the appellant "wanted to make a fresh start" and "had engaged well with educational programs for a short period before her recent offending" (AB 16).
40 It appears to me that his Honour's comments as to the appellant's "attitude" must be read in the context of the following exchange which took place during the course of sentencing submissions:
HIS HONOUR: … She has been released on supervised release, reoffended, been released again on supervised release and reoffended.
One is left with the view that, for the moment, [the appellant's] attitude isn't one conducive to working by herself and also with the support of others towards her own rehabilitation, and I'm not sure that that is something that is necessarily going to change in the foreseeable future, and that's something that I think needs to be weighed in …
MS BARONE: … [The appellant] does have, in some way, a hard outer shell, and although that should not always be viewed as being somewhat dismissive or indifferent, and what there needs to be is this level of intensive intervention that - - -
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- HIS HONOUR: Can I just add to that particular point, I understand people can have a hard outer shell. It's actually not as hard as you might think. Underneath hides a lot of sensitivities. It's really a decision that is arrived at not by considering whether she has got a hard outer shell, or whether it's not so hard and what's in there underneath; it's a case [of] looking at what she has been doing … Actions speak louder than words, and whatever her shell may be, this is what she has been doing … (AB 114 - 115)
41 In my opinion, based on the appellant's record of offending, and the contents of the report to which I referred at [24], it was open to his Honour to find that the appellant's attitude was such as to indicate either an inability or a "lack of preparedness" to work with people towards her own rehabilitation. In addition, I note that the author of the report of 12 November stated that the appellant would not engage in any conversation when attempts were made to interview her.
42 It is submitted on behalf of the appellant that her preparedness to take steps to rehabilitate herself ought not to have been assessed by reference to past behaviour, but rather to her attitude at the time of sentencing. In particular, the appellant relies upon the contents of a further supplementary report dated 14 December 2007. The relevant portion of the report states that, "[w]hilst verbalising little, it appears that [the appellant] is adamant that she would like a fresh start where she is not known by the wider community." The reference to a "fresh start" must be read in the context of the appellant's desire to move to another suburb, a desire which the author of the report made clear "cannot be satisfied at this point in time".
43 I accept that there were some, albeit slight, grounds for hoping that the appellant would be more disposed to work towards rehabilitation in the future. She was said to be ashamed of aspects of her behaviour. She had engaged in schooling while in detention, and shown an ability to learn. She had an interest in, and aptitude for, sports. Her mother, albeit hampered by other responsibilities, was generally willing to assist in plans for improving the appellant's behaviour. However, these positives fell to be assessed against a very significant past lack of co-operation and a record of persistent offending. His Honour did not err, in my view, in concluding that, balanced against the need to protect the community (including persons such as the appellant's own young relations, who were with her when she drove) and the requirements for personal and general deterrence, the fairly limited insight, and the almost non-existent actual co-operation in rehabilitation on the part of the appellant, could not justify other than an immediate term of detention.
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Ground 4
44 Section 7(h) of the Act provides:
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.
45 The appellant submits that the learned sentencing judge could not have arrived at the conclusion that the "last resort" had been reached because he had not informed himself of the possibility of a "24/7 wrap-around order". I have already concluded that his Honour was justified in finding that that sentencing option was not appropriate for the reasons that I set out at [22] - [26].
46 The appellant also complains that his Honour arrived at the conclusion that detention was appropriate "without mentioning the potential counter-productivity of further detention to the appellant and the community" (AB 17). In A Child v The State of Western Australia [2007] WASCA 285 it was said:
One of the reasons why it is desirable to avoid, wherever possible, the detention of a youthful first offender of otherwise good character, is that adverse effect which detention may potentially have on the character of that offender, to the future detriment of the community as a whole. More bluntly, it is accepted that young people are impressionable. A young person sentenced to detention is necessarily going to be mixing with numerous other young people who have committed offences, many of whom may have committed a whole string of offences, and/or very serious offences, and may be of thoroughly bad character. At a time in their lives when they are particularly vulnerable to peer influences, one can readily see the need to ensure that, so far as possible, those who are not set on a criminal course of conduct are not exposed to such influences. [18]
47 However, the personal circumstances of the appellant in that case were very different from the circumstances and antecedents of the offender in this appeal. She has numerous relevant prior convictions which indicate an established, significant, pattern of offending. Of particular concern are the five prior convictions for stealing a motor vehicle, taken with the five prior convictions for driving without a licence, for reckless driving, and for stealing a vehicle and driving it recklessly. The seriousness of the appellant's offending in the present case was made worse by the fact that she drove in a reckless manner with her 10-year-old brother and 12-year-old cousin in the car. Unless rehabilitated, she presents a danger to herself, to her own small relatives, and to road users
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- generally. I am of the opinion that a period of detention was an appropriate disposition in the circumstances of this case.
48 MILLER JA: I agree with Wheeler JA.
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