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 246; (2011) 214 A Crim R 326
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
Vagh v The State of Western Australia [2007] WASCA 17
FIANNACA J:

Introduction

This is an application for leave to appeal against sentences of imprisonment imposed on the appellant by Magistrate P Hogan in the Children's Court of Western Australia on 3 September 2015, after his Honour cancelled a conditional release order (CRO) that had been made earlier in respect of the offences for which the appellant was sentenced. The appellant had breached the CRO by further offending and was in custody on remand for the other offences when he came to be dealt with by the learned magistrate. However, the basis of the proceedings before his Honour was an application to amend the CRO, not because of the breach by reoffending, but because of the inability of the appellant to comply with the conditions of the CRO as a result of being in custody for the further offences.
The grounds of appeal allege:
1.a miscarriage of justice in the imposition of a custodial sentence, occasioned by the magistrate refusing an application to adjourn the proceedings;
2.that the magistrate erred in law in cancelling the CRO; and
3.that the magistrate erred in failing to take into account that the appellant's mental impairment rendered him an inappropriate vehicle for general deterrence.
The application for leave and the merits of the appeal were dealt with at the same hearing before me on 30 September 2015.
The second ground, as argued, identified a jurisdictional error. That is, the magistrate acted without jurisdiction in cancelling the CRO and, therefore, in proceeding to re‑sentence the appellant for the offences the subject of the CRO. The other grounds concern the magistrate's exercise of discretion in the sentencing process, assuming he had jurisdiction.
Although it was not raised during the hearing, a question arises as to whether the ground alleging jurisdictional error should more properly have been the subject of an application for a review order under s 36 Magistrates Court Act 2004 (WA). However, having regard to the provisions of s 36(5)(a), it would be open for me to make a review order in any event. In my opinion, the matter is properly before the court as an appeal against the sentences that were imposed, and the jurisdictional error, if established, would ground an argument that a miscarriage of justice has been occasioned.
For reasons which follow, I have concluded that the magistrate acted without jurisdiction in cancelling the CRO, because a pre‑condition to the exercise of his jurisdiction to cancel the CRO was not met, in that the magistrate did not have the appellant's consent. Consequently, the cancellation of the CRO and the sentences that were then imposed were invalid and there has been a miscarriage of justice. Accordingly, leave will be granted and the appeal will be allowed on that ground. The sentences will be set aside.
I delivered my decision on the appeal on 15 October 2015 and indicated that my reasons would be published later. At that hearing, I invited submissions from the parties as to the appropriate consequential order. After hearing submissions, I concluded that it would be necessary for the matter to be remitted to the Children's Court for the application in respect of the CRO to be dealt with according to law.

Evidence tendered on appeal

At the hearing of the appeal, the appellant's counsel tendered affidavits of:
1.Miranda Ajduk (from Legal Aid Western Australia), sworn 22 September 2015;
2.Hayley Evelyn O'Hara (from the Aboriginal Legal Service of Western Australia), sworn 23 September 2015; and
3.the appellant, sworn 21 September 2015.
Ms Ajduk and Ms O'Hara are legal practitioners who have represented the appellant, respectively, in the Magistrates Court and the Children's Court in proceedings relevant to this appeal. The background set out below is taken from:
(a)the affidavits and the attachments thereto;
(b)the transcript of proceedings before the magistrate on 3 September 2015; and
(c)documents on the Children's Court record.

Background

The appellant was born on 3 April 1997. At the time of the proceedings on 3 September 2015, he was 18 years of age.
On 23 January 2015 the appellant was sentenced in the Children's Court at Perth to a CRO for 8 months, pursuant to s 98 and s 101 Young Offenders Act 1994 (WA), for a number of offences that he had committed in December 2014, when he was 17 years of age. The offences are:

Charge Offence Date of Offence

PE 4214/14 Aggravated burglary and commit offence in dwelling, s 401(2)(a) Criminal Code (WA) 16 December 2014

PE 4218/14 Aggravated burglary and commit offence in dwelling, s 401(2)(a) Criminal Code 20 December 2014

PE 4220/14 Aggravated burglary and commit offence in dwelling, s 401(2)(a) Criminal Code 21 December 2014

PE 4222/14 Escape from lawful custody, s 146 Criminal Code 23 December 2014

PE 97/15 Burglary and commit offence in dwelling, s 401(2)(b) Criminal Code 21 December 2014

Under the relevant statutory scheme, which is discussed below, the CRO consisted of an intensive youth supervision order (IYSO) and a sentence of detention for 8 months. The appellant was entitled to be released from detention as soon as the sentence would have commenced. He was then required to comply with the conditions of the CRO until the end of the term for which he would have been liable to be detained if there had been no CRO (ie 8 months). The IYSO imposed a number of conditions, including a condition that he would not commit another offence, a condition that he comply with the reasonable directions of his supervising officer, a residential condition and community work conditions.
Whilst subject to the CRO, the appellant was arrested and charged with a number of offences committed when he was an adult, the first of them on the day he turned 18, less than two and a half months after he had been placed on the CRO. Those offences, which are listed for sentence in the District Court and the Magistrates Court at Perth in November this year (the adult charges), are set out in the following table prepared by the respondent, in the order in which the charges were brought by the police:

Charge Offence Date of Offence

MI 4411/15 Aggravated burglary and commit offence in dwelling, s 401(2)(a) Criminal Code 29 April 2015

MI 4412/15 Stealing, s 378 Criminal Code 29 April 2015

MI 4413/15 Steal motor vehicle, s 378 & 371A Criminal Code 29 April 2015

MI 6016/15 Unlawful damage, s 445 Criminal Code 29 April 2015

MI 6017/15 Carry article with intent to injure or disable, s 8(1)(a) Weapons Act 1999 (WA) 29 April 2015

MI 33097/15 Burglary and commit offence in dwelling, s 401(2)(b) Criminal Code 3 April 2015

MI 33098/15 Stealing, s 378 Criminal Code 3 April 2015

The appellant has been remanded in custody for the adult charges since 29 April 2015, except for one day when he was on bail.
To appreciate the circumstances in which the magistrate came to deal with the appellant on 3 September 2015, it is necessary to outline the chronology of events involving his offending as an adult and his court appearances.

Court appearances leading up to proceedings of 3 September 2015

On 29 April 2015 the appellant was charged with three offences (MI 4411/15 ‑ 4413/15). He was granted bail with a $1 surety and conditions, including a residential condition. However, he was not released on bail until 18 May 2015. On 19 May 2015, he appeared, unrepresented, in the Midland Magistrates Court on an application for reconsideration of bail filed by the police. Bail was revoked due to the appellant's inability to comply with the residential condition. He was remanded to 22 May 2015 to enable him to obtain legal advice.
On 22 May 2015, the appellant appeared in the Midland Magistrates Court, represented by counsel from Legal Aid. The proceedings were adjourned to 19 June 2015.
On 29 May 2015, while in custody, the appellant was personally served with a notice to attend court, pursuant to s 43 Young Offenders Act. The notice, which was issued under s 117 of that Act by an officer with Youth Justice Services (YJS), required the appellant to appear in the Children's Court at Perth on 9 June 2015 on 'an application under Section 112 of the Act to amend the [CRO]'. The application appears to specify the basis of the application in a section headed 'Short Description of Offences', although no offence is described. Instead, the section states that the appellant 'is not able to comply with the conditions of the Order due to an extended period of remand in custody'.
On 9 June 2015, the proceedings in respect of the application were adjourned until 22 June 2015 to enable the appellant to obtain legal advice and so that inquiries could be made regarding the status of the adult charges that had been brought at that stage and the appellant's mental health.
On the same day, 9 June 2015, the appellant was charged with additional offences (MI 6016/15 ‑ 6017/15) at the Midland Magistrates Court. He was required to appear on those charges on 21 July 2015.
On 11 June 2015, counsel for the appellant in the Children's Court attempted to confer with him at Hakea Prison but was unable to do so. She formed the opinion that the appellant was suffering from poor mental health.
At various times during June 2015 counsel in the Children's Court proceedings conferred with counsel in the Magistrates Court proceedings about the status of proceedings and the appellant's mental health.
On 19 June 2015, the appellant appeared in the Midland Magistrates Court in relation to the first three adult charges. Those proceedings were adjourned for the appellant to obtain legal advice.
On 22 June 2015, the appellant appeared in the Children's Court and admitted that he was in breach of the CRO. It should be noted, however, that the application that was before the court to amend the CRO had not been brought on the basis of a breach (under s 113 Young Offenders Act). The proceedings were adjourned that day and then on three further occasions pending any private psychiatric evaluation of the appellant and the outcome of his other outstanding matters.
On 26 June 2015, counsel from Legal Aid sought an adjournment of the first three adult charges to obtain a private psychiatric assessment of the appellant. The adjournment was granted until 7 August 2015.
On 10 July 2015, the appellant was charged with the offences that were alleged to have occurred on 3 April 2015 (MI 3097/15 and 3098/15). He was required to appear on those charges in the Perth Magistrates Court on 22 July 2015.
On 21 July 2015, the appellant appeared in the Midland Magistrates Court on charges MI 6016/15 ‑ 6017/15. Those proceedings were adjourned to 7 August 2015 for consolidation with the other adult charges, pending the psychiatric assessment.
On 22 July 2015, in the Perth Magistrates Court, charges MI 3097/15 ‑ 3098/15 were adjourned for further mention until 19 August 2015.
On 7 August 2015, the adult charges were consolidated and transferred to the Perth Magistrates Court.
On 11 August 2015, counsel received the draft psychiatric report of Dr Pascu. The appellant was subsequently given advice, and instructions were obtained from him in respect of the adult charges.
On 19 August 2015, the appellant pleaded guilty to all of the adult charges in the Perth Magistrates Court and sought admission into the Drug Court program. The Magistrates Court proceedings were adjourned and transferred for mention before the Drug Court. The hearing date for the application for admission to the program was scheduled for 7 September 2015.
On 20 August 2015 the appellant appeared before the Children's Court. The proceedings were adjourned until 3 September 2015 for counsel to obtain a copy of Dr Pascu's report from Legal Aid.

The hearing on 3 September 2015 - the subject of the appeal

At the commencement of proceedings in the Children's Court, before Magistrate Hogan, on 3 September 2015, counsel for the appellant made an application to adjourn the proceedings in the following terms:
But, your Honour, we're really trying to determine what's going to happen with his adult matters, to try and ensure that his juvenile matters are dealt with in a way that's in his best interests, your Honour. I do understand that his adult matters are next before the Drug Court on 7 September. That would be the first time that [JJ] would have his matters before the Drug Court. So I would ask - just to determine what's happening in relation to that - if these matters could please be back in the afternoon of 7 September (ts 6).
His Honour responded:
I had a look at the report and the record and I take a different view. He should be sentenced today, if that's what's going to happen. I don't take the view that we wait on the adult court. There's no principle that says the adult court goes first (ts 6).
By that exchange, notwithstanding the absence of language suggesting a formal application to adjourn and a formal refusal, it may be taken that the appellant sought an adjournment of the hearing of the application then before the magistrate, and his Honour refused the adjournment. His Honour formed the view that there was no principle that required the proceedings to be adjourned awaiting the outcome of separate matters in the adult court. His Honour's comment that the appellant 'should be sentenced today, if that's what's going to happen' indicates to me that he appreciated there was a process before he could come to sentence the appellant and, secondly, that if the outcome of that process was that the appellant had to be sentenced, the sentencing should not be delayed. He elaborated later as to why there should not be further delay (the matter having been adjourned on a number of occasions previously).
The application that was before the magistrate at that stage was in the terms set out in [18] above, being an application to amend the CRO pursuant to s 112 of the Young Offenders Act. His Honour appreciated that to be the case in the following exchange with the appellant's counsel:
HIS HONOUR: First of all though we have to work out what he's here for. He's here because he's on a JCRO and he's not in breach of it, but he can't do it because he's in jail. So it needs to be dealt with on that basis; is that right?
O'HARA, MS: Well, that was the case, but since that has occurred, as I understand it, there would have been pleas of guilty to the adult matters for them to go to the Drug Court (ts 6).
It can be seen that his Honour was informed, in effect, that the appellant admitted breaching the CRO by further offending, because he had entered pleas of guilty to the adult charges. The magistrate acknowledged this, but returned to the fact that the appellant was not able to comply with the CRO and had not been able to do so for some time. This tends to confirm that his Honour continued to regard the application as one based on the fact that the appellant was unable to comply, rather than on a breach of the CRO.
When counsel for the appellant then indicated a concern that the time the appellant might spend in custody for the Children's Court offences would not be taken into account in any sentence for the adult charges, his Honour returned the discussion to the nature of the application before him:
HIS HONOUR: Well, first of all, we've got to get back to the beginning point. And the beginning point is that the Department has used the notice to attend court to bring him back here and make an application under section 112 to amend the order. How would one suggest it's to be amended if he is in custody and can't do it?
O' HARA, MS:   I don't know whether supervision only or whether there's any - I guess, in a practical sense there's not really -
HIS HONOUR: I suppose I'm asking Youth Justice.
GLEIM, MS: Sorry. Are you saying that it's an incorrect notice to attend, your Honour?
HIS HONOUR: Well, you've applied to amend it. How would you suggest it be amended, if he is in custody and can't do it?
GLEIM, MS: Amended by either allowing another - the options are to sentence to detention or another IYSOD, but I assume he can't do - - -
HIS HONOUR:   Do you, in fact, mean to apply to cancel it?
GLEIM, MS: Was this not discussed when it was listed, your Honour, on 9 June? Sorry, I haven't -
HIS HONOUR: But the Department's application is in front of me and the Department wrote the words on it.
GLEIM, MS: From 9 June, yes.
HIS HONOUR: The Department wrote the words on it and the words
GLEIM, MS: Yes. I can't think of the exact way to term this, your Honour. This is how I'm -
HIS HONOUR:     All right. Well, I treat it as an application to amend or cancel, although you haven't used the words 'cancel'.
GLEIM, MS: Yes
HIS HONOUR: Because one won't hold the writer of the prosecution notice to making typo errors and not thinking things through.
GLEIM, MS: Yes.
HIS HONOUR: So I'm taking it as an application to amend or cancel.
GLEIM, MS: Yes, your Honour (ts 7).
Ms Gleim was from YJS, which was responsible for making the application and issuing the notice to attend.

When the magistrate turned again to the appellant's counsel, she did not raise any objection to the magistrate treating the application as one to 'amend or cancel'. Apart from the magistrate's misdescription of the notice to attend as a 'prosecution notice', it can be seen that his Honour was of the view that the failure of the notice to describe the application as one to 'amend or cancel', rather than just to amend, was a formal defect that did not go to the actual nature of the application. In identifying the options as being 'to sentence to detention or another IYSOD', Ms Gleim appears to have confirmed that the intention was to apply to either cancel or amend the CRO, as cancellation was the only way in which the magistrate could have proceeded to sentence the appellant to detention.
Accordingly, the hearing proceeded on the basis that it was an application to amend or cancel the CRO. The magistrate then invited counsel for the appellant to make a submission as to which option he should adopt, but, as appears from the following exchange, she was not in fact given an opportunity to make a submission:
HIS HONOUR: So, Ms O'Hara.
O'HARA, MS: Yes, your Honour.
HIS HONOUR: My initial view is then that I should amend or cancel it, because [JJ] can't do it because he's in custody, no bail in the adult court.
O'HARA, MS: That's his current circumstances.
HIS HONOUR: What do you say? Should I amend or cancel it or do nothing?
O'HARA, MS: Well, your Honour, I guess - - -
HIS HONOUR: Hang on, the first point is so he's in custody in the adult court, is he not?
O'HARA, MS: Yes.
HIS HONOUR: Custody, no bail; is that right?
O'HARA, MS: That's correct. That's his current circumstances.
HIS HONOUR: Custody, no bail and he has been custody, no bail for how long?
O'HARA, MS: He has been there since - he was in Banksia, but - since the 29^th, 20 days from 29 April to 18 May, and then from 19 May to 3 September, 108 days.
HIS HONOUR: So -
O'HARA, MS: There was also 16 days at Banksia Hill, but from looking at [J's] record, that has been taken account of to deal with some damage charges.
HIS HONOUR: So what's his next step in the adult court? Has he said guilty to what he's facing in the adult court?
O'HARA, MS: I believe so. And the next step there was to have an assessment for Drug Court, which is on the 7th. So there may be a bail application - I can't say for sure, but there may be a bail application on that date, perhaps to enable him to go into a drug rehabilitation service accommodation, perhaps. I can't say for sure though, your Honour.
HIS HONOUR: All right. Thanks for that. So, on the facts, then, as I know them to be and on the Department's application to amend or cancel, I cancel the IYSOD. That means then that [JJ] is liable for resentencing (ts 8 - 9).
As can be seen, while initially inviting Ms O'Hara to make a submission, his Honour then interrupted her to clarify the appellant's status in custody. In the event, no submission was made on the appellant's behalf as to the appropriate course. Importantly, the magistrate did not ask the appellant, either directly or through his counsel, whether he consented to the CRO being cancelled.
Having purported to cancel the CRO, his Honour proceeded with the re‑sentencing process. Having heard further submissions and had regard to various reports before him, including the report, dated 12 August 2015, of Dr Pascu in respect of her psychiatric assessment of the appellant, his Honour concluded that the only appropriate disposition was a term of imprisonment. He sentenced the appellant to 6 months' imprisonment on each of the charges to be served concurrently, resulting in a total effective term of 6 months, discounted from the original sentence of 8 months' detention. Given that his Honour was sentencing the appellant to imprisonment as an adult, 6 months was the limit of his Honour's jurisdiction in respect of the term he could impose on a person who had turned 18: s 21(2)(c) Children's Court of Western Australia Act 1988 (WA) (Children's Court Act). His Honour backdated the sentence to 29 July 2015.

Grounds of appeal

By an appeal notice filed on 18 September 2015 the appellant applied for leave to appeal against the sentences and the magistrate's 'decision' to refuse to adjourn sentencing. The application was brought under pt 2 of the Criminal Appeals Act 2004 (WA), which provides for an appeal to the Supreme Court constituted by a single judge. An appeal may be made under that part from a decision of a magistrate in the Children's Court, pursuant to s 41 Children's Court Act. For the purposes of such an appeal, the Children's Court is a court of summary jurisdiction: see s 4(2) Criminal Appeals Act and s 19(3) Children's Court Act.
Section 7 of the Criminal Appeals Act stipulates the circumstances in which a right of appeal lies under pt 2 of that Act in the following terms:
(1)A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
'Decision' is defined in s 6 of the Act to mean a number of types of decision. It does not include specifically a refusal to grant an adjournment. It was initially argued on behalf of the appellant that the decision might come within par (g), which refers to 'a refusal to make an order that might be made as a result of a conviction or acquittal'. This appears to have relied on s 148 Criminal Procedure Act 2004 (WA) which provides:
If a court convicts an accused of an offence, then, subject to The Criminal Code section 5, the Sentencing Act 1995 and the Young Offenders Act 1994, the court must sentence the accused for the offence and may make other orders in respect of the accused under those Acts or any other relevant written law, as the case requires.
Section 16 of the Sentencing Act 1995 (WA) empowers a court to adjourn the sentencing of an offender for various reasons. However, in my opinion, it would be a strained construction of the words 'an order that might be made as a result of a conviction' to include an order adjourning sentencing. The reference to 'other orders' in s 148 Criminal Procedure Act is self‑evidently a reference to orders that are additional to the sentence. These would include the various orders under pt 15 to pt 17 of the Sentencing Act (such as disqualifications, reparation orders, restraining orders and prohibitive behaviour orders).[1] In my opinion, those are the types of orders contemplated by s 6(g) Criminal Appeals Act.
[1] Although those under pt 15 are stipulated to form part of the sentence (s 102(3)), they are made 'in conjunction with any sentencing option available to the court' (s 102(1)).
There are further reasons why a construction of that provision that would include a refusal to adjourn sentencing should be rejected. First, it would contravene the general legal policy against fragmentation of criminal proceedings. Secondly, once a sentence has been imposed, if within jurisdiction, it would continue to have effect unless set aside. An appeal against a refusal to adjourn sentencing would be otiose. It would be necessary to appeal against the sentence (for which there is a specific right under s 6(f)), and any alleged error in the refusal to adjourn would then be relevant, if at all, to a ground that there had been a miscarriage of justice: s 8(1)(b) Criminal Appeals Act. In those circumstances, it would be necessary to show that the sentencing discretion miscarried because the sentencing judge was not sufficiently advised of the facts (which would have been available if the adjournment had been granted): Vagh v The State of Western Australia [2007] WASCA 17 [58] (Roberts‑Smith JA, McLure & Pullin JJA agreeing); McDonald v White [2007] WASC 138 [106] (Johnson J).
In my opinion, the original appeal notice was incompetent to the extent that it sought leave to appeal against the decision to refuse the application to adjourn. Counsel for the appellant accepted that position at the hearing and abandoned that aspect of the appeal. There being no objection from the respondent, the appellant was given leave to substitute an amended appeal notice, which is confined to an application for leave to appeal against the sentences imposed by the magistrate.
The amended appeal notice also amended the grounds of appeal, in particular deleting a ground that alleged the sentence was manifestly excessive. At the conclusion of his submissions, counsel for the appellant informed the court that he was abandoning a further ground, which alleged that the magistrate erred in stating that there was no principle that the adult court proceedings take precedence.
Accordingly, the amended grounds of appeal on which the appeal proceeded are:
1.The Magistrate's [sic] erred in sentencing the appellant to a custodial sentence, occasioning a miscarriage of justice.
Particulars:
(a)The refusal to adjourn sentencing (for 4 days) to permit the Appellant to be assessed for admission to the Drug Court program was unreasonable and plainly unjust;
(b)The refusal to adjourn sentencing occasioned serious injustice to the appellant in depriving him of the pre‑sentence opportunity to address factors contributing to his criminal behaviour by way of residential rehabilitation through the Drug Court program;
(c)There was no prospect of the adjournment causing injustice to any party;
(d)The refusal to adjourn sentencing was not otherwise in the interest of justice.
…
3.The Magistrate erred in cancelling the Conditional Release Order, in particular by 'treating' the Notice to Attend Court dated 29 May 2015 as an application to cancel the Conditional Release Order and thereby proceeding contrary to s 112 of the Young Offender's Act.
4.In sentencing the appellant to 6 months imprisonment, the Magistrate erred by failing to take into account that the appellant's mental impairment rendered him an inappropriate vehicle for general deterrence;
I have come to the conclusion that leave should be granted on ground 3, and that the appeal should be allowed on that ground, on the basis that the magistrate did not have jurisdiction to cancel the order, because a pre‑condition was not met, rather than on the basis of the particular specified. I will deal with that ground first.

Ground 3 - jurisdictional error in cancelling the CRO

Legislative scheme

By virtue of s 19(1) of the Children's Court Act, and subject to certain exceptions, the Children's Court has exclusive jurisdiction to hear and determine a charge of an offence alleged to have been committed by a child. The jurisdiction of the court extends to dealing with an offender who is an adult, as set out in s 19(2) and (2a):
(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.
The Young Offenders Act regulates the manner in which young persons are to be dealt with in the criminal justice system. 'Young person' is defined in s 3 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 provides:
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.
Accordingly, the provisions of the Young Offenders Act concerning CROs continued to apply to the appellant in this case. However, once the CRO was cancelled, the appellant came to be sentenced in accordance with the provisions of the Sentencing Act, hence the imposition of a term of imprisonment, rather than juvenile detention. This is by virtue of s 46A and s 50B, which provide, relevantly:
46A.Application of Sentencing Act 1995
(1)The Sentencing Act 1995 applies to and in respect of the sentencing of a young person -
(a)in a case to which section 50B applies; or
...
50B.Offender aged 18 or over at time of sentence, options
(1)This section applies to and in respect of a young person found guilty of an offence who at the time of being sentenced is 18 years old or older (the offender).
(2)Subject to the Sentencing Act 1995 the court dealing with the offender must dispose of the matter by sentencing the offender under that Act, and that Act and the Sentence Administration Act 2003 apply to and in respect of the sentence imposed.
...
(4)If the court dealing with the offender is the Children's Court, subsection (2) is subject to section 21 of the Children's Court of Western Australia Act 1988.
(5)Despite subsection (2), section 46 applies to the court dealing with an offender.
Section 46 of the Young Offenders Act sets out the principles and considerations that are to be applied when dealing with young persons in the criminal justice system. Those principles and considerations were required to be applied in the proceedings under s 112 of the Act in this case. Relevantly the section provides:
46.Principles and considerations to be applied to young offenders

(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.

(2)The court is to consider any information about the offender or the offence that may assist the court to decide how to dispose of the matter, and in particular -
(a)the nature and seriousness of the offence; and
(b)any history of offences previously committed by the offender; and
(c)the cultural background of the offender; and
(d)any order previously made by a court when disposing of a charge of an offence that still applies to the offender, and any further order that is liable to be imposed if the offender does not comply with the terms of any such order; and
(e)the extent, if any, to which any person was affected as a victim of the offence.

(3)The court is to dispose of the matter in a way that is in proportion to the seriousness of the offence and is consistent with the treatment of other young persons who commit offences.

Also relevant for the purposes of this appeal are the provisions of s 6 and s 7 of the Young Offenders Act which respectively set out the objectives of the Act and the general principles of juvenile justice. In particular, and without diminishing the importance of other parts, I have regard to the following provisions:
6.Objectives
The main objectives of this Act are -
(a)to provide for the administration of juvenile justice; and
(b)to set out provisions, embodying the general principles of juvenile justice, for dealing with young persons who have, or are alleged to have, committed offences; and
(c)to ensure that the legal rights of young persons involved with the criminal justice system are observed;
...
7.General principles of juvenile justice
The general principles that are to be observed in performing functions under this Act are that -
(a)there should be special provision to ensure the fair treatment of young persons who have, or are alleged to have, committed offences; and
(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; and
…
(d)the community must be protected from illegal behaviour; and
…
(h)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; and
…
(l)in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered.
I now turn to the statutory provisions in the Young Offenders Act concerning CROs.

In sentencing a young offender, the Children's Court may make an order known as an intensive youth supervision order: s 98. Such an order may impose on the offender various conditions of the kind that were imposed in this case, as described above in [12]. An IYSO may be made with or without imposing on the offender a sentence of detention (of no more than 12 months): s 99. Where a sentence of detention is imposed, the IYSO is referred to in the Act as a conditional release order: s 101(1). If a CRO is made, the offender is to be released from detention under the sentence as soon as the sentence would have commenced if there were no CRO: s 101(2). A CRO can only be made if the offender consents to it and the court is satisfied that release under the order would be suitable for the offender in all the circumstances: s 103.
A CRO is required to have attached an agenda specifying the conditions imposed, but every CRO is also taken to include the condition that the offender is not to commit another offence and is to be of good behaviour: s 102 and s 109.
Section 52 of the Act provides, in the following terms, that all orders made by the court that require consent are required to be explained to the person to whom the order is made:
52.Order requiring consent to be explained
(1)Before making an order that can only be made with the consent of a person, the court is required to explain, or cause to be explained, to the person in language likely to be readily understood by the person -
(a)the purpose and effect of the order; and
(b)the consequences that may follow failure to comply with the order or with any requirement under this Act that may apply as a result of the order being made; and
(c)any right that the person may have to seek the review of the order or appeal against it.
(2)If requested to do so, the person in respect of whom the order is made and any responsible adult who is present when the order is made are required to sign a written acknowledgement, endorsed on a copy of the order, to the effect that the order was made with the required consent and its purpose and effect are understood, but the fact that in a particular case such an acknowledgement may not have been signed does not postpone or otherwise alter the effect of the order.
By virtue of s 4 (referred to above) this provision applied to the appellant, notwithstanding he was an adult. However, there may be a question as to whether the provision applies to an order made by a magistrate cancelling an order that imposes obligations on an offender, for instance under s 112 (see below), or only to orders (such as a CRO) which impose positive obligations and which may carry consequences for a failure to comply. The use of the conjunctive in s 52 in respect of the explanations the court is required to give would suggest the latter construction should be preferred. However, for reasons that will become apparent, it is not necessary to decide that question for the purposes of this appeal. Nevertheless, the section highlights the care that the legislature expects will be taken in the exercise of the powers under the Act.
Once a CRO has been made, circumstances may arise that require consideration to be given to amending or cancelling the CRO, or suspending an obligation under the CRO. The latter is dealt with administratively under s 110. The power to amend or cancel and the process for seeking an amendment or cancellation are dealt with in s 111 to s 116.

The extent of the power to amend is set out in s 111:
111.Amendment of order, extent of power

(1)A power given to the court to amend a conditional release order includes power to -
(a)cancel the order and substitute another conditional release order; or
(b)cancel any of its conditions and substitute other conditions; or
(c)amend any of its conditions by cancelling any of their requirements or by inserting any requirement in them, either by way of addition or substitution.

(2)The power to amend a conditional release order is subject to the same qualifications as would apply to the making of an order in the terms of the order as amended.

There are two avenues by which a CRO may come before the Children's Court for amendment or cancellation. The first is by application by either the chief executive officer of the department of the public service principally assisting the Minister in the administration of the Young Offenders Act (see s 3 and s 9) or the offender. References to the chief executive officer include that officer's delegate: s 10. The provisions governing the notice to be given and the powers of the court on such an application are contained in s 112 and s 117:
112.Amendment or cancellation of order

(1)Subject to subsection (2), the court may at any time, upon the application of the chief executive officer or the offender, by order cancel the conditional release order or amend it.
(2)A conditional release order can only be cancelled under this section with the consent of the offender and, except so far as it diminishes or removes an obligation of the offender, an amendment can only be made under this section with the consent of the offender.

...
117.Notice of court applications
(1)Where an application to the court is made under this Division by or on behalf of the chief executive officer, the chief executive officer is to issue a notice to attend court that describes the nature of the application and requires the person affected by the application to appear before the court on the hearing of the application.
(2)Where an application to the court is made under this Division by the offender, the court is to cause notice of the application and of the time and place fixed for the hearing to be given to the chief executive officer.

Section 43 of the Act specifies the information to be contained in a notice to attend court issued under any provision of the Act. It also stipulates what is required to effect service of the notice. The notice to attend in this case purported to be issued pursuant to s 43, and there has been no challenge to its validity.
The other avenue by which an application to amend or cancel a CRO may come before the court is governed by s 113 and s 114 (only those provisions relevant on this appeal are reproduced):
113.Breach of order, CEO may require offender to attend court

(1)If any condition or undertaking upon which the order was made is not observed, the chief executive officer may issue to the offender a notice to attend court to be dealt with for the failure.
(2)The notice to attend court is to describe the alleged failure and give such particulars as are necessary to identify the nature of the allegation.

114.Breach of order, powers to deal with

(1)This section applies if -
(a)in proceedings for an offence, the court finds that a person who is subject to a conditional release order committed that offence while released under the order; or
(b)in proceedings resulting from a notice to attend court given under section 113, the court finds that a person who is subject to a conditional release order has failed to comply with any condition or undertaking upon which the order was made; or
(c)in proceedings for an offence, the court makes a finding under section 115(a) or (b).

(2)If this section applies the court may -
(a)order that no further action be taken because of the failure to comply with a condition or undertaking upon which the conditional release order was made; or
(b)amend or cancel the conditional release order.

The consequences of a cancellation are set out in s 116:
116.Cancellation of conditional release order, effect of

(1)When the court cancels a conditional release order without substituting for it another conditional release order, it is to direct that the offender serve so much of the term of detention as it considers appropriate having regard to the matters set out in subsection (2).
(2)The period of detention is to be reduced in proportion to the extent to which the court considers that the offender complied with the conditional release order.
(3)If the order related to more than one sentence of detention, the reduction may be made to each or any of those sentences, as the court considers just in the circumstances.
(4)Cancellation of a conditional release order does not prevent a supervised release order from being subsequently made.
(5)If the offender has reached the age of 18 years when the order is cancelled, the balance of the term of detention is to be served in a prison, and while in a prison the Prisons Act 1981 applies to and in respect of the offender

Taking into account the language of the statutory provisions referred to above, and the subject matter and objects of the Young Offenders Act, I draw the following conclusions from the legislative framework:
1.Section 112 and s 114 provide different avenues for the amendment or cancellation of a CRO, and serve different purposes.
2.An application to amend or cancel a CRO due to a failure by the offender to comply with the CRO (a breach) must be brought under s 114, upon notice being given to the offender under s 113. This involves an 'allegation', the nature of which must be identified in the notice. The procedure is apt for circumstances in which there is an element of fault in the offender's failure to comply.
3.Section 114 is also the avenue for amendment or cancellation when the court is engaged in 'proceedings for an offence'; that is, when it is dealing with an offence other than the offence for which the offender was placed on a CRO, and the court finds the offence was committed while the offender was released under the CRO. Such circumstances would also constitute a failure by the offender to comply with the CRO, involving an element of fault.
4.Under s 114, as the court is dealing with circumstances involving an element of fault on the part of the offender, there is no question of requiring the offender's consent before the court can cancel the CRO. To do so would undermine the court's power to enforce a CRO, and would potentially frustrate the purpose of a CRO.
5.Section 112, on the other hand, is apt for circumstances where there is no element of fault (or, at least, none has yet been established), but there are reasons for either relieving the offender of one or more of the obligations under the CRO or making an amendment which increases the obligations. In the latter case, the amendment can only be made with the consent of the offender. There may also be reasons (without involving fault on the part of the offender) for cancelling the CRO, but, again, this can only be done with the consent of the offender. Examples can be envisaged:
(a)There may be a need to amend the residential requirement.
(b)The offender may have difficulty in complying with one or more of the conditions of the CRO due to physical or other circumstances that do not involve fault, and it is considered by the offender himself or the supervising officer that he should be relieved of one or more of the obligations.
(c)The supervising officer might consider that a further requirement should be added to give effect to the objectives of the CRO, and the offender is agreeable.
(d)An offender may be agreeable to a new CRO being substituted to extend the period in which the offender is able to complete community work and meet the objectives of rehabilitation, which would require cancellation of the existing CRO. The power of the court to cancel a CRO and substitute another CRO is provided for in s 106(2) and s 111(1)(a) and assumed in s 116(1).
6.The need for the offender's consent before a CRO can be cancelled under s 112 is to be understood in the context of (a) the section providing a mechanism for amendment or cancellation when there is no element of fault and (b) the consequences of cancellation under s 116, if another CRO is not substituted.
7.The consequences of cancellation under s 116 apply to any cancellation of a CRO, whether under s 112 or s 114. There is nothing in the wording of s 116 or the other provisions of the Act that would exclude its application to s 112.
8.In determining what is required by the words 'with the consent of the offender' in s 112, it is necessary to have regard to the objectives of the Act, which include the need to ensure that the legal rights of the young offender are observed (s 6), and to the general principles of juvenile justice, which require that there should be special provision to ensure the fair treatment of young persons who have committed offences (s 7). The scheme of the Act is consistent with the need for strict adherence to requirements that are intended to protect the interests of the young offender.
9.A notice to attend is distinct from the application to which it relates. While a notice to attend may be the means by which both the offender and the court are notified of the application, the Act does not prescribe the manner in which an application is to be made.
10.There is nothing in the legislative scheme concerning CROs that would preclude an application that a court is considering under s 112 from being amended to seek a different outcome than was specified in the notice.

The decision of 3 September 2015

As I have already stated, on 29 May 2015 the appellant was personally served with a notice to attend court. The section headed 'Reason for Issue of Notice' read:
[JJ], being a young person in respect of whom an Intensive Youth Supervision Order (with Detention) was made by the Perth Children's Court on the 23^rd January 2015 under Section 98 of the Young Offenders Act 1994 was in force, make an application under Section 112 of the Act to amend the Order, issued in accordance with Section 117 of the Act.
That wording is curious. On its face, it may suggest that the appellant was making the application. It is obvious from all the circumstances, including the fact that the notice was served on him, that this was not the case. The notice was issued by a YJS officer, and the appellant was named on the notice as the defendant. At the hearing before the magistrate, as set out above, it was clear that the 'Department', through the YJS, was the applicant. It would appear to be accepted that the YJS officer was a duly authorised delegate of the chief executive officer under s 10 of the Act.
In any event, it is clear from the notice that the application was under s 112, and was to amend the CRO.
As I pointed out earlier, although there was no offence alleged, the notice contained a section headed 'Short Description of Offences'. This section would be apt for an application under s 114, rather than under s 112. However, the section was used in this instance to describe the reason for the application, namely:
[JJ] is not able to comply with the Conditions of the Order due to an extended period of remand in custody.
This does not allege a breach; the magistrate was alive to that, as appears in the transcript reproduced at [35] ‑ [37] above. His Honour appreciated the basis of the application to be that the appellant could not comply with the conditions of the CRO because he had been and continued to be in custody.
So, notwithstanding the fact that there had been a number of adjournments since the appellant first appeared in answer to the notice on 9 June 2015, and that he had admitted being in breach of the CRO by reoffending, the application before the court remained one under s 112. Although in the written submissions filed on behalf of the respondents, there was a suggestion that the proceedings before the magistrate should be taken to have been under s 114 because of what had transpired, at the hearing of the appeal, counsel for the respondents conceded that could not be the case. The concession was properly made.
As appears from the transcript of the proceedings, the magistrate engaged the officer from YJS in an exchange whereby it was agreed that the application should have been to 'amend or cancel'.
Ground 3 of the appeal contends that the magistrate erred in cancelling the CRO, 'in particular by "treating" the Notice to Attend Court dated 29 May 2015 as an application to cancel the Conditional Release Order'. Although I have concluded that the ground must succeed generally, I do not consider that the specified particular has been established. I will deal with that first, before turning to the jurisdictional issue.

Amendment of application

In my opinion, the specified particular wrongly conflates an application with a notice to attend. It is clear from s 117 that a notice to attend is to issue 'where an application to the court is made'. The notice is the means by which the offender is informed of the application and the date and time at which his appearance is required to deal with the application. As I have noted in my conclusions from the legislative framework, the Act does not prescribe the means by which an application is to be made. There is no form prescribed for the application to be made in writing. It would seem that the notice to attend serves as the means to notify both the offender and the court of the application that is being made, and indeed the magistrate appears to have regarded the document in that way (at one point incorrectly referring to it as a 'prosecution notice'). However, there is nothing in the Act, in my opinion, that precludes an oral application to amend an application under s 112 or the magistrate treating the application as being one to 'amend or cancel' a CRO. In fact, s 112 provides that the court may 'at any time', upon the application of the chief executive officer or the offender, by order cancel the CRO or amend it.
If the circumstances in which an amendment is made are such that an offender may be denied procedural fairness in the hearing that ensues (for instance, because the offender is not in a position to make submissions), the immediate remedy is an adjournment. If that is denied, it is not the validity of the amendment that will be brought into question, but the validity of the outcome of the hearing.
In the present case the YJS officer, Ms Gleim, agreed that the application should be treated as one to amend or cancel. There was no objection to the amendment from the appellant's counsel. There was no application on the appellant's behalf to adjourn the proceedings because counsel needed more time to deal with the amendment. In fact, as appears from the transcript, the appellant's counsel appeared to be concerned from the outset with the prospect that the appellant may be required to serve a custodial sentence. That could only occur if the CRO were cancelled, so that possibility appears to have been in her contemplation from the start. Finally, the specified particular does not allege that the appellant was denied procedural fairness. It contends that the magistrate's treatment of the notice as an application to cancel the CRO was an error of law.
Section 8(3) of the Criminal Appeals Act provides that no decision of, or proceedings before, a court of summary jurisdiction, nor any document in any such proceedings, shall be held to be bad for want of form. The fact that there was no formal application to amend the application does not warrant the conclusion that his Honour was wrong in proceeding on the basis that the application was to amend or cancel the CRO.
In my opinion, the specified particular of ground 3 has not been made out. However, the general contention of the ground is that the magistrate erred in law in cancelling the CRO. If the magistrate acted without jurisdiction, he will have erred in law in cancelling the CRO.

Jurisdictional error

Section 112 of the Young Offenders Act provides that a CRO can only be cancelled under that section 'with the consent of the offender'.
The question is whether the magistrate's failure to obtain the appellant's consent invalidated his purported cancellation of the CRO. If it did, then it would also invalidate the sentencing that followed. The question depends on whether the requirement to obtain consent is a precondition to the exercise of the statutory power, or a condition regulating the exercise of the statutory power.
The relevant principles and the proper approach to the question were discussed in Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 (McLure P, Buss JA & Mazza J agreeing) [23] ‑ [25]:
In analysing the issues it is necessary to distinguish between a precondition to the existence of a power and a condition regulating the exercise of a power. The former is an essential preliminary or condition precedent to the exercise of the jurisdiction, authority or power to act (in this case, to hear and determine the prosecution). The failure to comply with a precondition to the existence of a power will invalidate an act done in purported exercise of that power (that is, the trial will be a nullity).
The failure to comply with a precondition to the existence of a power always results in invalidity. On the other hand, a failure to comply with a statutory requirement that is not a precondition to the existence of a power may (in the absence of any statutory provision to the contrary), but not must, result in invalidity. The correct approach to these questions is identified by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. The majority said:
'An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition …
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person … exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory [91] ‑ [92].'
The majority criticised the distinction between directory and mandatory requirements which they said deflected attention from the real issue which is whether an act done in breach of the legislative provision is invalid. They continued:
'A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute" [93].'

Having regard to my conclusions in points 5 ‑ 8 in [68] above, I am of the opinion that the need for the offender's consent under s 112 is an essential preliminary or condition precedent to the exercise of the jurisdiction (or power) under that section to cancel a CRO. The words 'can only be cancelled' convey the clear intention that the CRO cannot be cancelled if the requirement is not met. This is consistent with the legislative scheme, in particular the distinction between s 112 and s 114. The failure to comply with the condition will invalidate the cancellation and any act done in consequence of the purported exercise of the jurisdiction, such as the imposition of sentences of imprisonment.
There are examples in the Young Offenders Act of provisions that impose requirements on the court that regulate the exercise of the court's statutory powers, but which are not conditions precedent. These include s 44, which requires the court to explain proceedings to a young person, and s 59, which requires that orders made by the court are to be put in writing and served on certain persons. In each case the legislature has specifically provided that the judgment or order of the court is not defective on the ground of a failure to comply, although in the case of s 44 that is subject to the proviso that the court must have 'substantially complied with this section'. In my opinion, these sections evince an intention on the part of the legislature to specifically provide for situations in which a failure to comply with a statutory requirement will not invalidate the outcome. Section 112 makes no such provision.
In this case, the magistrate did not obtain the appellant's consent to cancel the CRO. It was argued by the respondents that the appellant's consent can be inferred from the conduct of the matter on 3 September 2015 by the appellant's counsel; in other words, there was constructive consent. I do not consider that it is reasonably open to infer consent from the way in which the proceedings were conducted. The appellant's position in seeking an adjournment at the start of the proceedings was inconsistent with consent to cancellation of the CRO. There is nothing in what followed to suggest his position changed. Moreover, as I demonstrated above, the magistrate ultimately did not give the appellant's counsel an opportunity to make a submission on whether he should cancel the CRO. While his failure to return to her for that purpose may have been inadvertent, it is entirely inconsistent with any contention that he had the appellant's consent to cancel the order. Having regard to the scheme and objects of the Young Offenders Act, there was a need for strict adherence to the requirements of the section. In my view, it was necessary that his Honour expressly obtain the appellant's consent.
As the magistrate did not have the appellant's consent to cancel the CRO, the order cancelling the CRO was invalid. The sentencing process that followed was also invalid. The sentence, in each case, therefore, is a nullity.
There has been a miscarriage of justice and the appeal must be allowed.

Consideration of the consequential order

Under s 14(1) of the Criminal Appeals Act it is open for me to substitute a decision that should have been made by the magistrate, or order that the case is to be dealt with again by the Children's Court, with or without orders to that court as to how it is to deal with the case. The difficulty with the first approach in this case is that I am in no better position to determine the appropriate order under s 112 than the magistrate was. If I thought the CRO should be cancelled, I could not do so without the appellant's consent. Absent that consent, all that could be done would be to amend the CRO or make no order, in which case the CRO will have expired, and its purpose will have been frustrated. As the magistrate pointed out, it is difficult to envisage what amendment could be made, but in any event, the matter would need to be adjourned for further information to be obtained and, in my view, the appellate process should not be extended for that purpose.
I have concluded that the case should be remitted to the Children's Court pursuant to s 14(1)(e) of the Criminal Appeals Act for the application under s 112 to be dealt with according to law. It may be that, in the absence of consent by the appellant to cancellation of the order, there will be no feasible option, but that will be a matter for the magistrate to determine after complying with the process required by s 112 and making such enquiries as he considers appropriate. The difficulty arises because, in my opinion, the wrong form of application was before the magistrate on 3 September 2015 to enable the matter to be dealt with appropriately.
It is understandable that the application was initially under s 112, notwithstanding that the appellant had been charged with offences alleged to have been committed during the period of the CRO and was in custody, thus unable to comply with the conditions of the CRO. It may be assumed that the YJS had regard to the presumption of innocence at that stage, but considered that some amendment was required to the CRO in light of the fact the appellant was not able to comply with conditions at that time.
However, by the time the matter was dealt with on 3 September 2015, the appellant had admitted a breach of the CRO by reoffending. It would seem odd, where there has been fault on the part of the offender, that the court should be constrained in its discretion on an application to cancel or amend by the need to obtain the offender's consent. The appropriate application at that stage would have been under s 114 of the Act, on the basis of a failure to comply with conditions, in particular the condition that the appellant not commit any offence.
The case highlights the need for careful attention to be given to what is the correct form of application to be made for the purpose of amending or cancelling CROs, particularly when circumstances change.

Other grounds

While strictly it is not necessary to deal with the other grounds, I will give my opinion as it may have a bearing on further proceedings in this matter.
I should note first that the respondents referred to the fact that orders made by magistrates in the Children's Court, including sentencing decisions, can be reviewed by the president of the Children's Court pursuant to s 40 Children's Court Act, and that in LJL (a child) v Mason [2013] WASC 465 [3], Hall J pointed out that s 40 affords a simple alternative to an appeal in such cases, and will generally be the preferable course. However, s 40 does not preclude leave to appeal being sought under s 41, and full argument was heard in this case on the grounds of appeal that challenge the magistrate's exercise of his sentencing discretion.
I have concluded that, if the magistrate did have jurisdiction, I would not have granted leave on ground 1. In my view, the magistrate's refusal to grant an adjournment in the circumstances was warranted and the imposition of a custodial term was within the proper exercise of his discretion, so the ground would not have a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
I would have granted leave on ground 4, but would have dismissed the appeal in respect of that ground. It seems to me that the argument in support of this ground is that the magistrate gave insufficient weight to the appellant's mental impairment, and that has not been made out.

Ground 1

Having regard to the history of this matter, this ground would appear to be inextricably linked with ground 3, because the application to adjourn preceded the cancellation of the CRO. However, the ground was argued on the assumption that the magistrate did have jurisdiction to cancel the CRO and that the application to adjourn remained on foot after the cancellation of the CRO. As I noted above, the appellant's counsel at first instance did appear to have in contemplation from the outset that the matter might proceed to a re‑sentencing, and she reiterated her hope that 'there could be some delay' after the magistrate cancelled the CRO (ts 9). I am prepared to accept, therefore, that the application to adjourn related to the whole of the proceedings.
Once the magistrate cancelled the CRO, his options were to make a substitute CRO or require the appellant to serve all or part of the sentence of detention: s 116 Young Offenders Act. A substitute CRO was inappropriate in circumstances where the appellant was in custody on remand for the adult charges and the possibility of his release on bail in the Drug Court was speculative. The magistrate specifically adverted to the possibility of another CRO, and the obstacle posed by the appellant being in custody (ts 12). The appellant's argument is that the magistrate should have adjourned the sentencing to enable the appellant to be assessed for the Drug Court program, and that if he had then been able, within such a program, to address factors contributing to his offending behaviour, it may have had a bearing on the appropriate sentence in the Children's Court, presumably by making a substitute CRO an appropriate disposition.
Having refused to adjourn the proceedings, and having cancelled the CRO, the magistrate imposed a custodial sentence of 6 months' imprisonment. This was reduced from the term of 8 months that had been imposed as the sentence of detention that was part of the CRO.
It is important to note that the appellant does not contend that the sentence was manifestly excessive (a ground to that effect having been abandoned). As I understand the contention argued under this ground, it is that a miscarriage of justice was occasioned by the magistrate's failure to adjourn proceedings to enable the appellant to be considered for admission to the Drug Court program, with the consequence that the magistrate did not have all the information he might otherwise have to be persuaded that a custodial sentence was not inevitable. As I stated earlier, the relevant principles in determining whether the sentencing discretion has miscarried in such circumstances are as set out in Vagh v The State of Western Australia and McDonald v White.
The cases relied on by the appellant (Eley v Town of Victoria Park [2014] WASC 103 and The State ofWestern Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285) were cases in which the application to adjourn was made in the context of trial proceedings, not sentencing. In any event, they do not add to the proposition in Vagh v The State of Western Australia that it is necessary to demonstrate that a miscarriage of justice has occurred because the magistrate was not sufficiently advised of the facts.
In the present case, the magistrate had Specific Court Reports, the appellant's Detention Management Report and Dr Pascu's report, which put before him all of the matters relied on by the appellant as suggesting the appellant should have been given a further opportunity to rehabilitate, on this occasion by being admitted to a residential drug program. Those matters were, in essence:
1.the fact that the appellant was still a young person within the terms of the Young Offenders Act and was being dealt with by the Children's Court in accordance with the general principles of juvenile justice, in particular those in s 7(a) and (b);
2.the fact that he came from a deprived and disadvantaged background;
3.the relatively recent onset of psychiatric symptoms (although Dr Pascu expressed uncertainty as to whether the psychotic symptoms were drug related or part of an illness complicated by the illicit drug dependence and intoxication at the time of the alleged offences: psychiatric report, 12 August 2015, pages 5 ‑ 6);
4.his history of drug abuse from a young age, and the fact that he was in need of drug rehabilitation and counselling to address his drug problem to reduce his risk of reoffending;
5.a submission that the dominant emphasis in the sentencing of young people is to foster their rehabilitation by reintegration into the community, and to achieve community protection in that way.
Counsel for the appellant was not able to point to any new information at the time of the appeal that could have resulted in a different exercise of the sentencing discretion. As I pointed out during argument, the proposition that there would be additional information that might warrant a different outcome, if the matter were adjourned to enable the process in the Drug Court to take its course, was speculative.
Counsel for the respondents submitted that, in truth, the adjournment was not sought by the appellant to furnish the Court with relevant sentencing information, but to enhance his prospects of being admitted to the Drug Court program in respect of the adult charges. That is undoubtedly correct, but it does not follow that the Drug Court assessment might not have provided further information that would be relevant to the sentencing process in the Children's Court. However, the point is that the utility of an adjournment for that purpose had to be judged in the light of the substantial information already available to the magistrate.
It was also submitted on behalf of the respondents that the magistrate was entitled to have regard to the fact that his discretionary function to determine the appropriate sentence in the Children's Court proceedings was separate to that which was to be exercised in respect of the adult charges, and that the Children's Court charges were first in time and were mainly indictable only offences, some of which, at least, might be regarded as more serious than the adult charges. I agree that these were relevant considerations.
Finally, it was submitted on behalf of the respondents that the rehabilitation of the appellant was best achieved by a shortened custodial sentence and that progress towards rehabilitation was facilitated by the appellant being in custody. That is not a matter referred to expressly by the magistrate. At one point he expressed doubt about whether a prison sentence would be a personal deterrent to the appellant, because he had other reasons for offending and not fearing prison, namely his background and mental health (ts 12). However, he was not there addressing the potential for rehabilitation. The respondents' submission, as I understand it, is in response to the appellant's argument that the magistrate should have given greater weight to the prospect of rehabilitation within the community. In that regard, Dr Pascu's report (which was before the magistrate) indicated that, during his period on remand in adult custody, the appellant had developed insight into his drug problem, had been complying with medication, wanted to continue to undertake counselling, and accepted personal responsibility. The appellant's counsel acknowledged at the hearing of the appeal that these were indications that rehabilitation was being achieved within a custodial setting (SJA ts 77).
In any event, the magistrate concluded that a term of immediate imprisonment was the only appropriate sentence for two main reasons: (1) the appellant was already in custody, and (2) the appellant's history of non‑compliance with community-based orders. The appellant's court sentencing record disclosed that he had been placed on such orders on six occasions before 23 January 2015, over a period of more than four years, and that on occasions he had been sentenced to detention after breaching such orders. The magistrate considered that the appellant was likely to fail again if he were to be released on another community‑based order. In my opinion, that conclusion was open in light of the information before his Honour.
The magistrate also had regard to the need for general deterrence. In my opinion, this was a valid consideration. Although the cancellation of the CRO was not on the basis of a breach, nevertheless, for the purposes of re‑sentencing, the magistrate was entitled to have regard to the fact that the appellant had admitted reoffending on a number of occasions within a short time of being released on the CRO. While there may be circumstances in which an offender will not be required to serve the sentence of detention upon cancellation of a CRO, the efficacy of such orders depends significantly on the deterrence provided by the sentence of detention.
In the appellant's favour, the magistrate took into account mitigating factors, in particular that the appellant did not have a history of violent offending and that he had a young child who provided him with something to look forward to when he was released (ts 12).
In my opinion, for the reasons outlined above, it was open to the magistrate to conclude that a term of imprisonment was inevitable once the CRO was cancelled, that he had sufficient information before him to be able to proceed to re-sentencing, and that, therefore, an adjournment of the proceedings was not appropriate. There is no real prospect of the appellant establishing that the refusal of the adjournment occasioned a miscarriage of justice on the re‑sentencing, and I would refuse leave on ground 1.

Ground 4

The gist of this ground is that, in arriving at the term of 6 months' imprisonment, the magistrate included an allowance for general deterrence, and that, in doing so, his Honour erred by failing to take into account the appellant's mental condition which, the appellant submits, effectively rendered him an inappropriate vehicle for general deterrence.
The magistrate made the following comments about deterrence:
Some of the other principles are general deterrence and specific deterrence. I doubt whether a prison sentence would make any difference in terms of stopping you from offending because you've got other reasons for committing crimes not fear of going to jail and that's because of your background and your mental health that the doctor has written in the report. So I understand all that. But there also has to be general deterrence. When people commit offences the community has to know that people do go to jail when they have to (ts 12).
General deterrence was undoubtedly a relevant consideration, given the nature of the offences for which the appellant was being sentenced. His Honour referred on a number of occasions to Dr Pascu's psychiatric assessment of the appellant, describing the report as 'very good' (ts 12). It is clear from his Honour's remarks that he had due regard to the appellant's mental condition. The question raised by ground 4 is whether his Honour tempered the need for deterrence, having regard to the appellant's mental impairment.
Considerations of general (or even personal) deterrence are not rendered completely irrelevant when a court is sentencing an offender with a mental impairment: Gok v The Queen [2010] WASCA 185 [54] ‑ [61] (Mazza J, McLure P & Buss JA agreeing); R v Wright (1997) 93 A Crim R 48; Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442. General deterrence still operates in such a case, but its effect is 'sensibly moderated': Gok v The Queen [59]. The significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case: R v Wright (50 ‑ 51).
The magistrate did not deal expressly with the effect of the appellant's mental impairment on the issue of general deterrence. It is for that reason that I would have granted leave on this ground.
However, there are two reasons for rejecting the appellant's contention. The first is that the appellant has not demonstrated that the appellant was so afflicted by mental impairment as to make him an inappropriate vehicle for general deterrence: see Gok v The Queen [59] ‑ [60]. It is arguable on the information provided by Dr Pascu that the appellant was closer to the other end of the spectrum described in Gok v The Queen, being a case where the moderation of general deterrence is small because the offender knows what he or she is doing and appreciates the gravity of his or her actions.

The second reason for rejecting the appellant's contention is that the moderation of the sentence by the magistrate in this case suggests he did make allowance for the appellant's mental impairment. The appellant was originally sentenced to 8 months' detention when the CRO was imposed on him. The magistrate in the present case said he was reducing the sentence he was imposing 'for things in your favour' (ts 12 ‑ 13). The appellant's mental impairment, which his Honour had acknowledged, was a thing in his favour.
In my opinion, having regard to all the circumstances of the case, the sentence of 6 months' imprisonment reflects an adequate balancing of the appellant's personal circumstances, including his mental health, with the need for general deterrence and other sentencing factors.
For these reasons, I would have dismissed the appeal in respect of ground 4.

Orders

Given my conclusion in respect of ground 3, I make the following orders:
1.Leave to appeal granted in respect of ground 3.
2.Appeal allowed.
3.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.
4.The matter be remitted to the Children's Court to deal with the application under s 112 of the Young Offenders Act according to law.

Charge	Offence	Date of Offence
PE 4214/14	Aggravated burglary and commit offence in dwelling, s 401(2)(a) Criminal Code (WA)	16 December 2014
PE 4218/14	Aggravated burglary and commit offence in dwelling, s 401(2)(a) Criminal Code	20 December 2014
PE 4220/14	Aggravated burglary and commit offence in dwelling, s 401(2)(a) Criminal Code	21 December 2014
PE 4222/14	Escape from lawful custody, s 146 Criminal Code	23 December 2014
PE 97/15	Burglary and commit offence in dwelling, s 401(2)(b) Criminal Code	21 December 2014

Charge	Offence	Date of Offence
MI 4411/15	Aggravated burglary and commit offence in dwelling, s 401(2)(a) Criminal Code	29 April 2015
MI 4412/15	Stealing, s 378 Criminal Code	29 April 2015
MI 4413/15	Steal motor vehicle, s 378 & 371A Criminal Code	29 April 2015
MI 6016/15	Unlawful damage, s 445 Criminal Code	29 April 2015
MI 6017/15	Carry article with intent to injure or disable, s 8(1)(a) Weapons Act 1999 (WA)	29 April 2015
MI 33097/15	Burglary and commit offence in dwelling, s 401(2)(b) Criminal Code	3 April 2015
MI 33098/15	Stealing, s 378 Criminal Code	3 April 2015