JJ v Ryan - [2015] WASC 395

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: JJ -v- RYAN [2015] WASC 395

CORAM: FIANNACA J

HEARD: 30 SEPTEMBER 2015

DELIVERED : 15 OCTOBER 2015

PUBLISHED : 20 OCTOBER 2015

FILE NO/S: SJA 1072 of 2015

BETWEEN: JJ
Appellant
AND
SIMON MATTHEW RYAN
First Respondent
RYAN PAUL ANDRICH
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P HOGAN
File No  :CC PE 4214 of 2014, CC PE 4218 of 2014, CC PE 4220 of 2014, CC PE 4222 of 2014, CC PE 97 of 2015

Catchwords:

Criminal law and procedure - Children's Court - Cancellation of CRO - s 112 Young Offenders Act 1994 (WA) - Need for offender's consent - Jurisdictional error - Miscarriage of justice in sentencing

Sentencing - Children's Court - Re-sentencing after CRO cancelled - Refusal of adjournment - Mental impairment and general deterrence - Turns on its own facts

Legislation:

Children's Court of Western Australia Act 1988 (WA), s 19(1), s 19(2), s 19(2a), s 19(3), s 21(2)(c), s 40, s 41
Criminal Appeals Act 2004 (WA), pt 2, s 4(2), s 6, s 6(g), s 6(f), s 7, s 8(1)(b), s 8(3), s 14(1), s 14(1)(e)
Criminal Code (WA), s 146, s 371A, s 378, s 401(2)(a), s 401(2)(b), s 445
Criminal Procedure Act 2004 (WA), s 148
Magistrates Court Act 2004 (WA), s 36, s 36(5)(a)
Sentencing Act 1995 (WA), s 16, pt 15 - pt 17, s 46A, s 50B
Weapons Act 1999 (WA), s 8(1)(a)
Young Offenders Act 1994 (WA), s 3, s 4, s 6, s 7, s 7(a), s 7(b), s 9, s 10, s 43, s 44, s 46, s 52, s 59, s 98, s 99, s 101, s 101(1), s 101(2), s 102, s 103, s 106(2), s 109, s 110, s 111, s 111(1)(a), s 112, s 113, s 114, s 115, s 116, s 116(1), s 117

Result:

Leave to appeal granted in respect of ground 3
Appeal allowed
The sentence of 6 months imprisonment imposed on 3 September 2015 in respect of each of charges CC PE 4214/14, 4218/14, 4220/14, 4222/14 and 97/15 be set aside
The matter be remitted to the Children's Court to deal with the application under s 112 of the Young Offenders Act 1994 (WA) according to law

Category: A

Representation:

Counsel:

Appellant:     Mr D D Brunello
First Respondent           :     Ms K C Cook
Second Respondent      :     Ms K C Cook

Solicitors:

Appellant:     Aboriginal Legal Service (WA)
First Respondent           :     Director of Public Prosecutions (WA)
Second Respondent      :     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Eley v Town of Victoria Park [2014] WASC 103
Gok v The Queen [2010] WASCA 185
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
LJL (a child) v Mason [2013] WASC 465
McDonald v White [2007] WASC 138
R v Wright (1997) 93 A Crim R 48
Russell v The State of Western Australia [2011] WASCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JJ v Ryan

Details

AGLC: JJ v Ryan [2015] WASC 395
Case: [2015] WASC 395
Decision Date: 20 OCTOBER 2015

CaseChat Overview and Summary

In JJ v Ryan, the appellant, JJ, sought to challenge the decision of the respondent to cancel his Certificate of Registration of Offenders (CRO) under section 112 of the Young Offenders Act 1994 (WA). JJ had previously been convicted and sentenced by the Children's Court for various offences committed while a minor. The primary dispute centred around the legality of the CRO cancellation and the subsequent refusal to adjourn JJ's re-sentencing hearing, which led to a perceived miscarriage of justice.

The court was tasked with determining whether the Children's Court had the requisite jurisdiction to cancel a CRO without the offender's consent. Additionally, it had to assess whether the refusal to adjourn the re-sentencing hearing constituted a miscarriage of justice. These issues were pivotal in evaluating the fairness and legality of the proceedings, particularly in light of JJ's mental impairment and the potential impact on the effectiveness of general deterrence.

In addressing these issues, the court found that the cancellation of the CRO without JJ's consent was a jurisdictional error, as the statutory provision implied a requirement for the offender's agreement. The court further determined that the refusal to adjourn the re-sentencing hearing amounted to a miscarriage of justice, given JJ's mental impairment and the importance of considering these factors in sentencing. The court concluded that the Children's Court should have recognised these circumstances, which warranted a different approach to sentencing.

Consequently, the court quashed the decision to cancel the CRO and ordered the Children's Court to re-evaluate the re-sentencing process, ensuring JJ's mental impairment was properly considered. The court's decision underscored the necessity for adherence to statutory requirements and the importance of individualised justice, particularly for offenders with mental impairments.

Orders