JSA v The State of Western Australia
[2012] WASCA 25
•3 FEBRUARY 2012
JSA -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 25
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 25 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:62/2011 | 8 SEPTEMBER 2011 | |
| Coram: | BUSS JA MURPHY JA HALL J | 3/02/12 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | JSA THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Young offender One count of aggravated burglary and two counts of assaulting a public officer Total effective sentence of 20 months' detention Proper construction of s 124(1)(d) of the Young Offenders Act 1994 (WA) The meaning of 'the court is satisfied' that there is a 'high probability that the offender would commit further offences', within s 124(1)(d) Whether the primary judge assessed the future risk of the appellant reoffending in accordance with s 124(1)(d) Whether the primary judge erred by sentencing on the basis that primary consideration being given to the protection of the community under s 125 of the Young Offenders Act necessarily required a lengthier period of detention Whether any individual sentence was manifestly excessive Whether the total effective sentence infringed the first limb of the totality principle |
Legislation: | Criminal Code (WA), s 318(1)(d), s 401(2)(a) Dangerous Sexual Offenders Act 2006 (WA), s 7 Young Offenders Act 1994 (WA), s 7, s 46, s 118(1)(b), s 124, s 125, s 126, pt 7 div 9 |
Case References: | Ainsworth v D (a child) (1992) 7 WAR 102 AM (a child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996) Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303 B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Cornwall v Attorney-General (NSW) [2007] NSWCA 374 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 F (a child) v The State of Western Australia [2004] WASCA 193 Fernandez v Government of Singapore [1971] 1 WLR 987 Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 JA (a child) v The State of Western Australia [2008] WASCA 70 JTP v The State of Western Australia [2010] WASCA 191 KSB (a child) v The State of Western Australia [2004] WASCA 296 Law v The State of Western Australia [2009] WASCA 193 Ly v The Queen [2007] NSWCCA 28 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 MC (a child) v The Queen [2003] WASCA 205 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Murray v Murray (1960) 33 ALJR 521 Pedersen v The State of Western Australia [2010] WASCA 175 Quach v The Queen [1999] WASCA 210 R v Baldock [2010] WASCA 170; (2010) 243 FLR 120 R v DP (a child) [2003] WASCA 92 R v KC [2003] WASCA 144 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Storey [1998] 1 VR 359 R v VC (a child) (Unreported, WASCA, Library No 990142, 23 March 1999) RJE v Secretary to the Department of Justice [2008] VSCA 265; (2008) 21 VR 526 Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 The State of New South Wales v Reed (Preliminary) [2011] NSWSC 625 The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51 Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; (2007) 70 NSWLR 448 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 TL (a child) v The State of Western Australia [2005] WASCA 173 TRK v The State of Western Australia [2011] WASCA 90 TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JSA -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 25 CORAM : BUSS JA
- MURPHY JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : REYNOLDS DCJ
File No : CC 344 of 2011, CC 345 of 2011, CC 346 of 2011
Catchwords:
Criminal law - Appeal against sentence - Young offender - One count of aggravated burglary and two counts of assaulting a public officer - Total effective sentence of 20 months' detention - Proper construction of s 124(1)(d) of the Young Offenders Act 1994 (WA) - The meaning of 'the court is satisfied'
(Page 2)
that there is a 'high probability that the offender would commit further offences', within s 124(1)(d) - Whether the primary judge assessed the future risk of the appellant reoffending in accordance with s 124(1)(d) - Whether the primary judge erred by sentencing on the basis that primary consideration being given to the protection of the community under s 125 of the Young Offenders Act necessarily required a lengthier period of detention - Whether any individual sentence was manifestly excessive - Whether the total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 318(1)(d), s 401(2)(a)
Dangerous Sexual Offenders Act 2006 (WA), s 7
Young Offenders Act 1994 (WA), s 7, s 46, s 118(1)(b), s 124, s 125, s 126, pt 7 div 9
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr L C Carter
Respondent : Ms L D O'Connor
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ainsworth v D (a child) (1992) 7 WAR 102
AM (a child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996)
(Page 3)
Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303
B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Cornwall v Attorney-General (NSW) [2007] NSWCA 374
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
F (a child) v The State of Western Australia [2004] WASCA 193
Fernandez v Government of Singapore [1971] 1 WLR 987
Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155
Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398
Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470
JA (a child) v The State of Western Australia [2008] WASCA 70
JTP v The State of Western Australia [2010] WASCA 191
KSB (a child) v The State of Western Australia [2004] WASCA 296
Law v The State of Western Australia [2009] WASCA 193
Ly v The Queen [2007] NSWCCA 28
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
MC (a child) v The Queen [2003] WASCA 205
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Murray v Murray (1960) 33 ALJR 521
Pedersen v The State of Western Australia [2010] WASCA 175
Quach v The Queen [1999] WASCA 210
R v Baldock [2010] WASCA 170; (2010) 243 FLR 120
R v DP (a child) [2003] WASCA 92
R v KC [2003] WASCA 144
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Storey [1998] 1 VR 359
R v VC (a child) (Unreported, WASCA, Library No 990142, 23 March 1999)
RJE v Secretary to the Department of Justice [2008] VSCA 265; (2008) 21 VR 526
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
The State of New South Wales v Reed (Preliminary) [2011] NSWSC 625
The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51
Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; (2007) 70 NSWLR 448
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331
(Page 4)
TL (a child) v The State of Western Australia [2005] WASCA 173
TRK v The State of Western Australia [2011] WASCA 90
TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109
(Page 5)
Table of Contents
Buss JA's reasons 6
The circumstances of the offending 6
The appellant's personal circumstances 8
The appellant's prior criminal record 10
Sentencing young offenders: the legislative framework 11
Sentencing young offenders: relevant legal principles 14
The primary judge's sentencing remarks 15
The grounds of appeal 18
Ground 2: the issues 19
Ground 2: the appellant's and the State's submissions 19
Ground 2: the proper construction of s 124(1)(d) of the Act 20
Ground 2: did the primary judge assess the future risk of the appellant re offending in accordance with
s 124(1)(d) of the Act, properly construed? 25
Ground 2: conclusion 26
Ground 1: the primary judge's alleged errors 26
Ground 1: did the primary judge err by determining that the appellant was at a 'high probability' of
committing further offences etc? 27
Ground 1: did the primary judge err by determining that the appellant was at a 'high probability' of
committing further offences etc without any or adequate regard to material as to the nature of the appellant's
previous history, including his history of re offending after release from custody? 28
Ground 1: conclusion 29
Ground 3: general 29
Ground 3: did the primary judge err by sentencing on the basis that primary consideration being given to the
protection of the community necessarily required a lengthier period of detention? 29
Ground 3: did the primary judge err by treating protection of the community as requiring primary and so added
weight to be given to personal and general deterrence? 30
Ground 3: conclusion 31
Ground 4 31
The outcome of the appeal 33
Murphy JA's reasons 33
Hall J's reasons 35
(Page 6)
1 BUSS JA: On 25 March 2011, the appellant was sentenced in the Children's Court of Western Australia, after he had entered pleas of guilty to one count of aggravated burglary (contrary to s 401(2)(a) of the Criminal Code (WA) (the Code)) and two counts of assaulting a public officer (contrary to s 318(1)(d) of the Code). The offences were committed in a Western Australian country town.
2 Reynolds DCJ imposed a total effective sentence of 20 months' immediate detention. The individual sentences were structured as follows:
|
|
|
|
|
|
|
|
|
3 His Honour ordered that the total effective sentence commence on 25 March 2011. As a result, there was some overlap between this sentence and a sentence that the appellant was currently serving. The sentence he was currently serving arose by reason of the cancellation of a supervised release order, and did not expire until 21 June 2011.
4 The appellant was born on 9 January 1994. He was aged 17 years and 4 days at the time of the offending. He was 17 years and 2 months when sentenced.
5 The appellant appeals to this court against sentence.
The circumstances of the offending
6 The circumstances of the offending were as follows.
7 When the appellant committed the offences he was subject to a supervised release order. He was released, subject to this order, on 20 December 2010. He committed the offences in question on 13 January 2011. This offending resulted in the cancellation of the supervised release order.
8 The appellant was released on 20 December 2010 on the basis that he would reside with an aunt in a Perth suburb. Soon after his release, the
(Page 7)
- appellant commenced consuming alcohol and cannabis. He then travelled to the country town to live with a member of his extended family.
9 On 13 January 2011, at about 10.50 pm, the appellant entered the complainant's home, without permission, through a bathroom window.
10 The complainant was asleep on a chair in the lounge room. His mobile telephone was on his chest. The telephone was plugged into a charger.
11 The appellant approached the complainant and removed the mobile telephone. As the appellant was unplugging the telephone, the complainant awoke. The appellant was known to the complainant.
12 The appellant had a screwdriver. He took a key to the complainant's home and then pointed the screwdriver at the complainant and threatened to stab him. The appellant then went to the front door, unlocked it and ran from the premises.
13 The complainant called the police. He then heard noises from outside his home. The complainant went to the side of the premises and confronted the appellant and another male person, who were outside. The complainant saw his keys hanging from the appellant's pocket. Also, the complainant could hear his mobile telephone ringing in the appellant's pocket. He demanded the return of his keys and telephone. The appellant responded by demanding the return of his 'goon bag', which he had left at the back window of the complainant's home.
14 The complainant went to the back window and retrieved a plastic wine bag that was near the open bathroom window. When the complainant made a comment to the appellant about his having entered the complainant's home, the appellant became aggressive. He grabbed the complainant and held the screwdriver in his hand as if he was going to stab the complainant in the stomach. The appellant then ran away again. The police apprehended him a short distance from the complainant's home. The appellant was in possession of the screwdriver and the mobile telephone. He was arrested.
15 Later that evening, at about 11.30 pm, two police officers took the appellant to a country hospital for examination. At the hospital, the appellant began taunting the police officers about the recent death of a police officer in a traffic crash. The appellant spat at one of the police officers, striking him on the right shoulder with saliva. The appellant then turned and spat at the other police officer, striking him on the left shoulder
(Page 8)
- with spray from the saliva. The appellant was examined by medical staff and taken into police custody.
The appellant's personal circumstances
16 The appellant was conceived in tragic circumstances. It is unnecessary to recount them. His mother was aged 14 years when he was born.
17 The appellant is the eldest of seven children. All of them have been in the care of the Chief Executive Officer of the Department for Child Protection (the Department) since 2004, as a result of their mother's neglect, alcohol misuse, incarceration and homelessness. During his early years, the appellant was raised principally by his extended family.
18 The appellant has had a significant history of substance abuse since the age of 12 years. The main substances have been alcohol and cannabis but, in the past, he has also used inhalants.
19 The appellant has a very substantial prior criminal record. A considerable part of the three-year period before he committed the offences in question was spent in detention.
20 A report from the Department dated 1 February 2011, prepared by the appellant's case manager, Monica Trotta, describes the appellant as polite and friendly. He is connected to his Aboriginal culture and knows many of his extended family. He has been cooperative and well-behaved while in detention. However, upon release into the community he becomes sullen, low in mood and gravitates from place to place. He has always displayed a pattern of absconding from Departmental and private placements in the community.
21 The appellant has low literacy and numeracy skills. There are significant gaps in his education as a result of his truancy from school, issues arising from placements in the community, and the length of time he has spent in detention.
22 A Community Justice Services' Court Report dated 3 February 2011 includes the following summary, relevantly:
• It is evident that [the appellant] has experienced severe stressors in his younger childhood years with exposure to substance misuse in the family home, parental separation, emotional rejection, subsequent feelings of resentment towards his mother and the
- separation from his siblings proceeding [sic] [Department for Child Protection] intervention.
- • Since this time [the appellant] has experienced constant mobility in residence, often with no stable accommodation. As previously mentioned [the appellant] has resided in sixteen separate placements since his apprehension in January 2004. The breakdown in these placements can be attributed to [the appellant's] constant absconding from the residence in attempts to locate his mother, regardless of her constant failure to meet his expectations. Over the years [the appellant] has expressed the belief that with his persistence, he will succeed in getting his mother and siblings back together, which unfortunately has not proven to be the case.
• The constant uprooting and moving in [the appellant's] childhood appears to have impacted on his personal sense of belonging and the instability in accommodation is likely to have impacted on his emotional/psychological development.
• [The appellant] appears to experience ambivalent relationships with his caregivers, noting that they often try to provide him with his physical needs, however most often fail to afford him any support and emotional connections.
• Poor boundaries, insufficient parental role modelling, lack of family structure and a personal search for self-identity appear to be influencing factors in [the appellant's] history of substance use, risk taking and offending behaviours.
• Unfortunately [the appellant's] engagement in education has been minimal, which unfortunately will impact significantly upon his future training and employment opportunities.
• Despite significant efforts by support agencies working with [the appellant], he continues to display limited motivation to engage in structured daily activity, which is likely attributed to his desire to 'fit in' within his family structure, of who [sic] very minimal are engaged in school, training or employment.
• It appears that due to the environmental factors impinging on [the appellant's] younger years being out of his control, he has now reached a stage in his development where he is making all attempts to take control for the disadvantages he has faced.
• [The appellant] continues to receive a high level of intervention from a number of agencies, including the Department of Child Protection and Youth Justice Services, who are both working towards the common goal of stabilising his circumstances, identifying and supporting appropriate accommodation plans,
- engaging him in structured daily activity, all the while supporting and encouraging his connection with his family and culture.
The appellant's prior criminal record
23 The appellant's prior criminal record is set out in a 14-page document. The prior convictions were entered between 14 November 2005 and 11 August 2010.
24 Of those prior convictions, the offences for which a sentence of detention was imposed are as follows:
(a) On 20 December 2007, the appellant was sentenced to 5 months' detention for the offence of aggravated burglary (committed on 30 September 2007); 5 months' detention, concurrent, for breaching a youth conditional release order (imposed on 5 September 2007); and 6 months' detention, concurrent, for stealing a motor vehicle and driving recklessly (committed on 4 October 2007).
(b) On 15 August 2008, the appellant was sentenced to 12 months' detention for aggravated burglary (committed on 4 March 2008); 3 months' detention, concurrent, for breaching a youth conditional release order (imposed on 26 February 2008); 3 months' detention, concurrent, for stealing a motor vehicle (committed on 4 March 2008); 5 months' detention, concurrent, for stealing a motor vehicle to use without the consent of the owner (committed on 3 August 2008); and 5 months' detention, concurrent, for reckless driving (committed on 3 August 2008).
(c) On 25 November 2008, the appellant was sentenced to 12 months' detention, cumulative, for stealing a motor vehicle and driving recklessly (committed on 10 October 2008); 3 months' detention for driving a motor vehicle while disqualified or suspended (committed on 10 August 2008); and 4 months' detention for reckless driving (committed on 10 October 2008). It is not apparent from the documentary record of convictions whether the last of these sentences was ordered to be served concurrently or cumulatively.
(d) On 11 August 2010, the appellant was sentenced to 1 month's detention for breach of an intensive youth supervision order (imposed on 2 December 2009); 3 months' detention, concurrent, for another breach of an intensive youth supervision order
- (imposed on 2 December 2009); 1 month's detention, concurrent, for breach of a bail undertaking (committed on 20 April 2010); 3 months' detention, concurrent, for hindering an authorised person (committed on 12 March 2010); 1 month's detention, concurrent, for obstructing public officers (committed on 12 March 2010); 12 months' detention, concurrent, for stealing a motor vehicle with intent to use it without the consent of the owner (committed on 12 June 2010); 3 months' detention, concurrent, for threats to injure, endanger or harm any person (committed on 16 March 2010); another 3 months' detention, concurrent, again for threats to injure, endanger or harm any person (committed on 16 March 2010); 1 month's detention, concurrent, for trespassing on a place without lawful excuse (committed on 10 January 2010); 1 month's detention, concurrent, for trespassing on a place without lawful excuse (committed on 16 March 2010); 12 months' detention, cumulative, for driving a motor vehicle while disqualified or suspended (committed on 12 June 2010); and 1 month's detention, cumulative, for driving a motor vehicle while not holding a motor vehicle driver's licence (committed on 8 March 2010).
25 The appellant's other offences, for which non-custodial sentences were imposed, include disorderly behaviour in public, stealing (numerous offences), receiving, stealing a motor vehicle (numerous offences), failing to stop when called upon (numerous offences), aggravated burglary (numerous offences), assault with intent to prevent arrest (numerous offences), attempted armed robbery, possessing a weapon with intent to cause fear, common assault and threats to kill.
Sentencing young offenders: the legislative framework
26 Section 7 of the Young Offenders Act 1994 (WA) (the Act) provides, relevantly:
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;
…
(Page 12)
- (d) the community must be protected from illegal behaviour;
…
(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;
…
(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;
…
27 By s 46, relevantly:
(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;
(b) any history of offences previously committed by the offender;
(c) the cultural background of the offender;
(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.
(Page 13)
- (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.
(4) In deciding how to dispose of the matter, which includes deciding the appropriate degree of severity to be used, the court is to consider how young the offender is as a mitigating factor.
…
(6) The operation of this section is affected by section 125.
28 Division 9 of pt 7 is headed, 'Dealing with young person who repeatedly commits serious offences'. Division 9 comprises s 124 - s 130.
29 Section 124 specifies when div 9 applies. By s 124(1):
This Division applies to the sentencing of the offender for a serious offence (the current offence) if -
(a) the offender is a person who has committed and been found guilty of an offence for which a custodial sentence (sentence 1) was imposed; and
(b) after being released from custody having served a portion or the whole of sentence 1, the offender committed and was found guilty of another offence for which another custodial sentence (sentence 2) was imposed; and
(c) after being released from custody having served a portion or the whole of sentence 2, the offender committed the current offence; and
(d) the court, after taking into account the offender's history of re-offending after release from custody, is satisfied that there is a high probability that the offender would commit further offences of a kind for which custodial sentences could be imposed.
30 Section 124(2) provides that where the sequence referred to in s 124(1)(b) of release, re-offending and imposition of another custodial sentence has occurred more than once, the reference to sentence 2 in s 124(1)(c) is a reference to the custodial sentence most recently imposed.
31 Section 124(3) defines the term 'serious offence' appearing in s 124(1). The definition includes, relevantly, an offence against s 318 of the Code. See s 124(3)(a), the definition of 'Schedule 2 offence' in s 3, and the offences listed in Schedule 2.
32 Section 125 provides:
(Page 14)
- If this Division applies to the offender the court, in disposing of the matter, is to give primary consideration to the protection of the community ahead of all the other principles and matters referred to in section 46.
33 By s 126:
(1) If this Division applies to the offender and the court imposes a custodial sentence on the offender, the court, when disposing of the matter, may also make a special order in accordance with this Division.
(2) In deciding whether to make a special order the court is to have regard to the periods that have elapsed before the offender has re-offended after being released from previous custodial sentences.
(3) A special order can only be made if the Director of Public Prosecutions, after giving the offender notice that such a submission is proposed, submits to the court that a special order should be made.
(4) If the court makes a special order and the custodial sentence referred to in subsection (1) is a term of imprisonment, the court cannot make a parole eligibility order under Part 13 of the Sentencing Act 1995 in respect of that term.
(5) Without limiting section 21 of the Children’s Court of Western Australia Act 1988, the court cannot make a special order if it is constituted by or so as to include a magistrate.
- In s 3, the term 'special order' is defined to mean 'an order made under s 126'.
Sentencing young offenders: relevant legal principles
34 In The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51, Steytler P, McLure JA and Miller AJA summarised the principles applicable to the sentencing of young offenders, as follows:
The principles and considerations to be applied to the sentencing of young offenders are contained in s 7, s 47 and s 120 of the Act. It is unnecessary to detail them here save to note that detaining a young person in custody for an offence must only be used as a last resort and, if required, is only to be for as short a time as is necessary (s 7(h)). The Act places significant emphasis on the sentencing objective of rehabilitation: WO (a child) v Western Australia (2005) 153 A Crim R 352 at 362. As stated in that case, underlying the emphasis on rehabilitation is the long established understanding that the community is best protected by determined efforts to effect the rehabilitation of young offenders. Although retribution,
(Page 15)
- punishment and general deterrence are also relevant sentencing objectives under the Act, they are ordinarily given significantly reduced weight particularly when the offender is still a child [16].
35 Several decisions of the Court of Criminal Appeal and this court have emphasised that although, in general, personal and general deterrence have a tempered role in the sentencing of young offenders, those sentencing factors may become a significant consideration where, in a particular case, the rehabilitation of the offender appears unlikely, the offending or course of offending is serious, or the character and personal circumstances of the offender justify it. See Ainsworth v D (a child) (1992) 7 WAR 102, 117 (Malcolm CJ, Franklyn & White JJ agreeing); R v DP (a child) [2003] WASCA 92 [57] (Malcolm CJ, Murray & Parker JJ agreeing); MC (a child) v The Queen [2003] WASCA 205 [20] (McLure J, Steytler & Pullin JJ agreeing); JA (a child) v The State of Western Australia [2008] WASCA 70 [29] - [30] (Wheeler JA, Martin CJ & Miller JA agreeing).
36 The seriousness of an offence and the circumstances of its commission may, in a particular case, require that a young offender be sentenced to a period of detention. See F (a child) v The State of Western Australia [2004] WASCA 193 [14] (Wheeler J, Templeman & Miller JJ agreeing); TL (a child) v The State of Western Australia [2005] WASCA 173 [19] (Wheeler JA, Steytler P & McLure JA agreeing); JTP v The State of Western Australia [2010] WASCA 191 [13] - [14] (McLure P, Buss JA & Mazza J agreeing).
The primary judge's sentencing remarks
37 The individual sentences and the total effective sentence were imposed in the context of the primary judge determining, pursuant to s 124 of the Act, that div 9 of pt 7 applied to the appellant. As a result of that determination, s 125 required his Honour, in sentencing the appellant, to give primary consideration to the protection of the community ahead of all the other principles and matters referred to in s 46.
38 During submissions by defence counsel, the primary judge said:
[W]e … have this provision in section 124 and then the principle to be applied in 125, so if you stand back and say, 'This is really an application that, because of the provisions in section 124, goes to only apply to that prolific group' - the group that have this high probability of reoffending in a way that would expose them to a term of detention.
From my point of view, with everything that I've got before me I couldn't see any other conclusion to reach with [the appellant]. I mean, it's a
(Page 16)
- disappointing conclusion to have to reach, but he has been in detention on not just the most recent occasion but on other prior occasions, the record - he's a prolific offender. That's the sad reality, so you look at this particular set of circumstances. I mean, you could go back in his record and look to see when he was sentenced to detention, November 2008 and August 2008, even back in December 2007, you look at the nature of the offences, burglaries, reckless driving.
Anyway, the point that I make is that for someone like [the appellant] you're put in a very difficult situation. I'd suggest you're put in an impossible situation. The sad reality is that for someone like [the appellant] there is this high probability - as I was going to say, coming to the most recent occasion where he was a released on a supervised release order [sic] and the bulk of that sentence related to a stealing of a motor vehicle - not a burglary actually, but in any event one doesn't have to go back too far (ts 12).
39 A little later, in the course of debate with defence counsel, his Honour observed:
[The appellant's] position is that regrettably he would fall into the category of a prolific offender and fall into the category of someone that you would say, 'Yes, he has a high probability of reoffending and in a way that would expose him to detention.' No-one likes reaching that conclusion, but in [the appellant's] case that's where we're at at the moment. We'd like it to change. I hope it does change, and that view doesn't mean that it won't change. Hopefully it does (ts 14).
40 After the prosecutor and defence counsel had completed their submissions, the primary judge engaged in this discourse with the appellant about s 124 and s 125 of the Act:
HIS HONOUR: So anyway, where I was coming from [appellant] is that this section says that when you think someone has a high probability of reoffending in a way that would result in them being exposed to a liability of detention, if you think that, then you have to give primary protection to the community. Do you understand that? So that's the position we are in. Now, no-one can foresee the future or tell what is going to happen in the future, can you?
[THE APPELLANT]: No.
HIS HONOUR: That's why we talk about possibilities in some other instances, in this case probability. So it's just talking about the chance of. It doesn't mean it's definitely going to happen. So you should still understand that when you are released no-one is saying that something definitely will happen; no-one is saying, '[the appellant] is definitely going to offend'; no-one is saying that.
(Page 17)
- [THE APPELLANT]: Yep.
HIS HONOUR: We are just talking about chances. So no-one is saying you will definitely offend, and you know the person who can make sure that you don't offend. Who is that?
[THE APPELLANT]: Me.
HIS HONOUR: You. Yes, that's right. So you just show everyone that when you are released on the next occasion that you can stay out of trouble, and the only way you can show that is by staying out of trouble, isn't it?
[THE APPELLANT]: Yeah (ts 20 - 21).
41 His Honour described the facts and circumstances of the offending and then addressed matters of mitigation:
I'll bear in mind you have pleaded guilty. That's to your credit. You're only 17. Now, in relation to age, I won't go into this but it has been pretty difficult for you, for your background, to be 17 and emotionally really strong. There's problems there with your emotional capacity and lack of insight and lack of maturity …
Your mum is in Bandyup at the moment and indeed, your dad has passed away but the kids are your step-siblings, aren't they? …
When you go to some of these places or if you go back to [the Perth suburb where the appellant resided with his aunt] or wherever, make the most of it and just give it a chance and stay there. See, you're looking for something. You're not sure if someone is going to let you down because you've been let down in the past so you run off maybe before they can let you down - that's the way you see it - or so you can go and find something. Just try and think in your own mind, [appellant], that you need some sort of stability. You need to stay somewhere for a long period of time to settle yourself, so just stay somewhere (ts 23).
42 His Honour then referred, in substance, to s 124 and s 125 of the Act, and said:
[I]nevitably the application of this principle means that if you impose detention it's for a lengthier period of time than otherwise because once you start saying, 'Well, look, I'm still taking into account your rehabilitation but I'm giving primary consideration now to the protection of the community', so before it might have been like this, you know, they're all taken into account but now this protection one becomes more significant, more weighty, so it's logical, isn't it, that any length of detention will be a bit longer?
(Page 18)
- So that's the position you're in and just make sure that when you are released you don't get into any more trouble, okay, because if you do there will be another one of these applications, no doubt, so you just show everyone you can stay out of trouble. So in relation to that burglary there's a period of immediate detention of 18 months. In relation to each of the assaults against the public officers, on each and both of those there's two months' immediate detention concurrent with each other, but the offence 345 - that too is cumulative to the 18, so that makes 20 months' immediate detention.
Mindful of the principle, mindful of how that needs to be applied but also bearing in mind your rehabilitation, and your age still need to be taken into account and really you're a very young 17-year-old in many respects, I'll order that these sentences commence from today, so there will be a degree of overlap between the balance of the sentence that you're presently serving and part of this sentence. So the 20 months' immediate detention commences from today and you'll need to serve half of that before you're eligible for a supervised release order (ts 24).
The grounds of appeal
43 There are four grounds of appeal. They read:
1. The learned sentencing Judge erred in determining that Division 9 and s 125 of the Young Offenders Act 1994 (WA) ('YOA') applied to the sentencing of [the appellant], and in particular erred:-
a) by determining that [the appellant] was a 'high probability' of committing further offences of a kind for which custodial sentences could be imposed pursuant to s 124(1)(d) of the YOA; and
b) by making the determination referred to in 1(a) above without any or adequate regard to material as to the nature of [the appellant's] previous history, including his ' … history of re-offending after release from custody … ' as required by s 124(1)(d) of the YOA.
2. The learned sentencing judge erred by failing to properly direct himself as to the level of satisfaction required by s 124(1)(d) of the YOA, namely satisfaction beyond reasonable doubt that an offender is a high probability of re-offending in the relevant sense.
3. Alternatively to ground 1, if the learned sentencing judge correctly determined that s 125 of the YOA was applicable to the sentencing of [the appellant], the learned sentencing judge erred by:-
a) sentencing on the basis that primary consideration being given to the protection of the community necessarily
- required a lengthier period of detention (T at 24; The State of Western Australia v ZL[2010] WACC 18 at [31]); and
- b) treating protection of the community as requiring 'primary and so added weight to [be given to] personal and general deterrence' (The State of Western Australia v ZL [2010] WACC 18 at [31]).
- 4. The individual sentences and total effective sentence are manifestly excessive in the particular circumstances of the offences and the offender.
44 On 27 June 2011, Mazza J granted leave in relation to each of these grounds.
45 It is convenient, first, to consider ground 2, then ground 1, then ground 3 and, finally, ground 4.
Ground 2: the issues
46 Ground 2 raises two issues. First, what is the proper construction of s 124(1)(d) of the Act? In particular, what meaning is to be ascribed to the word 'satisfied' and to the phrase 'high probability that the offender would commit further offences'? Secondly, did the primary judge assess the future risk of the appellant reoffending in accordance with s 124(1)(d), properly construed?
Ground 2: the appellant's and the State's submissions
47 Counsel for the appellant submitted that the word 'satisfied' in s 124(1)(d) of the Act means satisfied beyond reasonable doubt. He also submitted that the term 'high probability' in the phrase 'high probability that the offender would commit further offences' in s 124(1)(d) means more than the balance of probabilities but less than beyond reasonable doubt. According to counsel for the appellant, his Honour's sentencing remarks demonstrate that his approach to the assessment of the future risk of the appellant re-offending was not in accordance with the proper construction of the provision; that is, 'the threshold for invoking the special principle was set too low'.
48 Counsel for the State submitted that the word 'satisfied' in s 124(1)(d) does not mean satisfied to the criminal standard of proof. She also submitted that, in any event, there was nothing to suggest that the primary judge applied 'anything other than a rigorous standard that would have satisfied the standard of "beyond reasonable doubt" (if that were [sic], in fact, the criteria [sic] to be applied)'.
(Page 20)
Ground 2: the proper construction of s 124(1)(d) of the Act
49 At common law, there are only two standards of proof. The criminal standard requires proof beyond reasonable doubt. The civil standard requires proof on the balance of probabilities. Although the civil standard is proof on the balance of probabilities, satisfaction as to whether that proof has been established depends upon the gravity of the allegation in question and its consequences. See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 360, 362 (Dixon J). Although the distinction between quantum of proof, on the one hand, and satisfaction as to proof, on the other, has been criticised, it has been long recognised in the law. See B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440, 456 - 457 (Priestley JA), 460 - 461 (McHugh JA).
50 The word 'satisfied' is used in describing the standard of proof in criminal and civil proceedings. Ordinarily, in a criminal case the burden of proof is on the prosecution, and the tribunal of fact must not convict unless it is satisfied beyond reasonable doubt as to the accused's guilt. Ordinarily, in a civil case the burden of proof is on the plaintiff, and before the court can find the affirmative of a fact in issue that is required to be proved, it must be satisfied on the balance of probabilities as to the existence of the fact.
51 Section 124(1) of the Act provides that div 9 of pt 7 applies to the sentencing of an offender for a serious offence if, amongst other things, 'the court, after taking into account the offender's history of re-offending after release from custody, is satisfied that there is a high probability that the offender would commit further offences of a kind for which custodial sentences could be imposed' (par (d)). The Act does not define 'satisfied' or 'high probability', or any cognate forms of that word or that term.
52 Section 124(1)(d) is concerned with an evaluation as to the probability of the occurrence of a future event; that is, whether there is a high probability that 'the offender would commit further offences' etc. This prediction as to the risk of recidivism must be made by the court after it has taken into account a specified mandatory consideration, namely, 'the offender's history of re-offending after release from custody'. The stipulation in s 124(1)(d) that the court must take into account the offender's history of re-offending after release from custody is not, in my opinion, an exhaustive statement of the matters that may or must be taken into account. The factors which the court is entitled or bound to consider (in addition to the mandatory consideration specified in s 124(1)(d)) are to be ascertained by implication from the subject matter, scope and purpose
(Page 21)
- of s 124 and s 125 in the context of the Act as a whole. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 - 40 (Mason J).
53 The condition in s 124(1)(d) will not be fulfilled (and, in consequence, div 9 of pt 7 will not apply) unless the court, after taking into account (amongst other things) the specified mandatory consideration, 'is satisfied that there is a high probability' that the specified recidivism would occur. Whether the court is satisfied that there is a high probability that the specified recidivism would occur will depend, in each case, on an assessment of all the facts and circumstances relating to the offender and his or her record of offending.
54 Section 124 and the other provisions of div 9 of pt 7 were enacted to deal with young people who repeatedly commit serious offences. If div 9 applies to an offender, then the principles that usually apply to the sentencing of young offenders are modified: the court is bound to give primary consideration to the protection of the community ahead of all other principles and matters referred to in s 46. Accordingly, if div 9 applies, then the severity of the sentence to be imposed on the offender may, in a particular case, increase. A finding that there is a high probability that 'the offender would commit further offences' etc is analogous to an aggravating circumstance.
55 An aggravating circumstance is a fact or other circumstance likely to result in a more severe sentence than would otherwise be the case. A mitigating circumstance is a fact or other circumstance likely to result in a less severe sentence than would otherwise be the case. It is a well-established principle of sentencing at common law that the prosecution must establish an aggravating circumstance beyond reasonable doubt, and the offender must establish a mitigating circumstance on the balance of probabilities. See R v Storey [1998] 1 VR 359, 369, 371 (Winneke P, Brooking & Hayne JJA and Southwell AJA); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24], [25], [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ); Law v The State of Western Australia [2009] WASCA 193 [25] - [34] (Buss JA, McLure & Pullin JJA agreeing).
56 The Parliament enacted the Act (in particular, s 124 and s 125) against the background of the common law standards of proof and the common law principle of sentencing to which I have referred. However, the composite phrase 'is satisfied that there is a high probability' etc, in s 124(1)(d), expresses a materially different concept from the common
(Page 22)
- law criminal and civil standards of proof. It is apparent from the statutory language that the Parliament decided that neither the criminal standard nor the civil standard should be embodied in s 124(1)(d). Rather, the Parliament introduced a different measure of the burden of persuasion.
57 The ordinary and natural meaning of 'probable' is more than a 50% chance of the event in question happening. See Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303, 309 (Bray CJ); Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331, 346 (Deane J). See also Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, 480 - 481 (Williams, Webb & Taylor JJ); Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155, 161 - 162 (Stephen J), 169 (Mason J); B, (457 - 458) (Priestley JA).
58 In my opinion, the words 'high probability', within 'is satisfied that there is a high probability' etc, in s 124(1)(d), are not amenable, in this context, to more precise explanation or meaning than to say that they require a higher degree of probability than a mere balance of probabilities and a lower degree of probability than beyond reasonable doubt.
59 In B, the Court of Appeal of New South Wales construed s 139(2) of the Mental Health Act 1983 (NSW), which required that the court must discharge a person detained in a mental hospital where 'the medical superintendent is unable to prove that it is very highly probable that the person is a mentally ill person … '. The court held that the words 'very highly probable' imported a standard of proof between the 'balance of probabilities' and 'beyond reasonable doubt'. Priestley JA observed in relation to 'very highly probable':
The words do not require a person who must decide whether something is very highly probable to ask himself whether or not he has a reasonable doubt about it. He may content himself with simply asking whether, after considering all the material he is entitled to consider, he thinks that the particular state of affairs in question is very highly probable. The materials will either bring him to that conclusion or they will not. If he asks for further guidance about the meaning of the phrase I do not think that there is any that can usefully be given; to go further, in substance, than stating the meaning as I have explained it, will simply end in substituting for the words Parliament has required the issue to be decided by, another set of words whose range of meanings is in the nature of things unlikely to be absolutely co-extensive with the range of meanings of the statutory words (458).
(Page 23)
60 The test under s 124(1)(d) is therefore whether the court, after taking into account all relevant factors which it is entitled or bound to take into account, is satisfied (that is, affirmatively persuaded) that there is a high probability that the offender would commit offences of the specified kind. The test is not whether the court, after taking into account all relevant factors etc, is satisfied beyond reasonable doubt that there is a high probability. No gloss on or qualification of the word 'satisfied' is necessary or permissible. The statutory text in s 124(1)(d) must be construed as a whole. The provision simply requires that the court be satisfied, after taking into account all relevant factors etc, that there is a high probability that the offender would commit offences of the specified kind.
61 As I have mentioned, the words 'high probability' require a higher degree of probability than a mere balance of probabilities. Satisfaction that there is a high probability that the specified recidivism would occur will not exist if, for example, the court is merely satisfied that there is a 51% prospect that the offender would commit further offences of the specified kind.
62 During the hearing of the appeal, counsel for the State referred, by way of comparison, to the legislation in Western Australia and some other States concerning dangerous sexual offenders. This legislation, and some of the case law which has developed in relation to it, were considered by this court in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307.
63 Section 7(1) of the Dangerous Sexual Offenders Act 2006 (WA) provides that before the court that is dealing with an application under that Act may find that a person is a serious danger to the community, 'the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence'. By s 7(2), the Director of Public Prosecutions has the onus of satisfying the court as described in s 7(1), and the court has to be satisfied by acceptable and cogent evidence and 'to a high degree of probability'.
64 In GTR, this court discussed, amongst other cases, the decision of the Court of Appeal of Victoria in TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109 (Callaway AP, Buchanan JA & Coldrey AJA agreeing) and the decision of the Court of Appeal of New South Wales in Cornwall v Attorney-General (NSW) [2007] NSWCA 374 (Mason P, Giles & Hodgson JJA). The dangerous
(Page 24)
- sexual offenders legislation in Victoria and New South Wales referred to the court being satisfied, to a high degree of probability, that the offender was 'likely' to commit a relevant offence. The dangerous sexual offenders legislation in Western Australia refers to the court being satisfied, to a high degree of probability, that there is an 'unacceptable risk' that the person concerned would commit a serious sexual offence. The essence of the decisions in TSL, Cornwall and GTR was that it was necessary for the court to be satisfied to a high degree of probability (being more than the civil standard but less than the criminal standard) that it was 'likely' (in the case of the Victorian and New South Wales legislation), and that there was an 'unacceptable risk' (in the case of the Western Australian legislation), the offender or person concerned would commit a relevant offence, but there was no requirement that the court be satisfied that there was more than a 50% prospect that, absent the making of an order under the legislation, the offender or person concerned will commit a relevant offence.
65 The statutory language in s 124(1)(d) of the Act is materially different from the statutory language in the legislation concerning dangerous sexual offenders. In particular, the Victorian and New South Wales legislation referred to 'likely' (in the sense of the court being 'satisfied to a high degree of probability' that the offender was 'likely' to commit a relevant offence) and the Western Australian legislation refers to an 'unacceptable risk' (in the sense of the court being 'satisfied to a high degree of probability' that there is an 'unacceptable risk' that the person concerned would commit a serious sexual offence). By contrast, s 124(1)(d) is not concerned with likelihood or unacceptable risk or any formulation which includes less than a 50% prospect. Section 124(1)(d) refers, instead, to the court being 'satisfied thatthere is a high probability that the offender would commit further offences' (emphasis added). The decisions in TSL, Cornwall and GTR are therefore not in point.
66 I note, for completeness, that:
(a) In RJE v Secretary to the Department of Justice [2008] VSCA 265; (2008) 21 VR 526, a differently constituted Court of Appeal of Victoria (Maxwell P, Nettle & Weinberg JJA) decided not to follow TSL, and held that 'likely' in the Victorian dangerous sexual offenders legislation meant more likely than not.
(b) By the Serious Sex Offenders Monitoring Amendment Act 2009 (Vic), the Parliament of Victoria amended the Victorian legislation to provide, in essence, that the legislation is to be taken always to
- have permitted a determination on the basis of the lower threshold enunciated in TSL.
- (c) By the Crimes (Serious Sex Offenders) Amendment Act 2010 (NSW), the test under the New South Wales dangerous sexual offenders legislation was reformulated. See The State of New South Wales v Reed (Preliminary) [2011] NSWSC 625 [7] - [9] (McCallum J). The reformulated test is similar to the test under the Western Australian legislation in that the New South Wales legislation now refers to an 'unacceptable risk' instead of 'likely'.
(d) In Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 [9], French CJ referred to the decision in RJE and the subsequent legislative amendment in Victoria, but did not express an opinion as to the correctness of the Court of Appeal of Victoria's preferred construction in RJE of the relevant provision as in force before the amendment.
Ground 2: did the primary judge assess the future risk of the appellant re-offending in accordance with s 124(1)(d) of the Act, properly construed?
67 In the present case, the primary judge told the appellant, in the course of explaining the operation of s 124 and s 125, that '[w]e are just talking about chances' (ts 21). This statement must, however, be read in context. It was made in the course of his Honour informing the appellant that no-one was asserting that he was 'definitely going to offend' again (ts 20). It is apparent that his Honour was endeavouring to reassure the appellant that the court and the Department had not formed the view that he would inevitably re-offend and that they had not abandoned their efforts to assist in his rehabilitation.
68 The primary judge, in the course of debate with the prosecutor, defence counsel and a representative of the Department, noted that s 124(1)(d) required him to form the view that the appellant had a 'high probability of re-offending'. See, for example:
(a) His Honour's comments to defence counsel that s 125 only applies where there is 'this high probability of re-offending in a way that would expose [the offender] to a term of detention' (ts 12) and '[t]he sad reality is that for someone like [the appellant] there is this high probability' (ts 12).
(b) His Honour's observation to defence counsel that the appellant 'is [at] a high probability of re-offending' (ts 13).
(Page 26)
- (c) His Honour's comments to defence counsel that the appellant 'would fall into the category of a prolific offender and fall into the category of someone [about whom] you would say, "Yes, he has a high probability of re-offending and in a way that would expose him to detention"' (ts 14).
(d) His Honour's observations to the representative of the Department that:
It says 'high probability'. Now, I've added that I think everyone would like to think that it isn't going to be that when he is released he offends, and any decision along those lines doesn't mean that he would. No-one can predict the future; that's why we talk about probability (ts 17).
(e) His Honour's comments to the representative of the Department that 'when you come to decide this "high probability" issue it's not just a case of looking at the offending history; you also look at his circumstances and also look at program provision' (ts 18).
69 Also, the primary judge distinguished elsewhere between 'probability' and 'possibilities' (ts 17, 20).
70 I am in no doubt that, on a fair reading of the transcript of the sentencing hearing as a whole, the primary judge assessed the future risk of the appellant re-offending in accordance with s 124(1)(d), properly construed. On the information before his Honour, the only conclusion reasonably open was that there was a high probability (that is, a higher degree of probability than a mere balance of probabilities and a lower degree of probability than beyond reasonable doubt) that the appellant would commit further offences of a kind for which custodial sentences could be imposed.
Ground 2: conclusion
71 Ground 2 fails.
Ground 1: the primary judge's alleged errors
72 Counsel for the appellant relied on two alleged errors in relation to ground 1. First, it was submitted that the primary judge erred 'by determining that [the appellant] was [at] a "high probability" of committing further offences of a kind for which custodial sentences could be imposed', within s 124(1)(d) of the Act. Secondly, it was submitted that his Honour erred 'by making the determination [that the appellant was
(Page 27)
- at a "high probability" of committing further offences of a kind for which custodial sentences could be imposed] without any or adequate regard to material as to the nature of [the appellant's] previous history, including his "history of re-offending after release from custody"', as required by s 124(1)(d). I will consider each of these alleged errors in turn.
Ground 1: did the primary judge err by determining that the appellant was at a 'high probability' of committing further offences etc?
73 Comprehensive information in relation to the appellant, his current and past personal circumstances, and his record of offending (including his history of re-offending after release from custody) was put before the primary judge. The relevant information included the Community Justice Services' Court Report dated 3 February 2011 and the Department's Report dated 1 February 2011. On the basis of the information before him, his Honour concluded that the appellant was a 'prolific offender' who had a 'high probability of re-offending' and that '[f]rom my point of view, with everything I've got before me I couldn't see any other conclusion to reach with [the appellant]' (ts 12).
74 I have already summarised the appellant's very substantial prior criminal record. See [23] - [25] above. Between 25 November 2005 and 11 August 2010, the appellant appeared before the Children's Court in relation to 83 separate charges. The Community Justice Services' Court Report notes that the appellant 'has been subject to 12 periods of community based supervision, since first coming to the attention of Youth Justice Services in 2006' and 'has also been sentenced to four significant periods of detention in the past three years' (page 2).
75 The appellant has a history of re-offending after release from custody. Most recently, the appellant was released from detention on a supervised release order on 20 December 2010 and proceeded to commit the offences in question on 13 January 2011 (ts 3). This is not the first occasion on which the appellant has re-offended shortly after being released. On three previous occasions, the appellant has been released from detention and has re-offended within one week of release on two occasions and within three months of release on the other occasion.
76 Ms Trotta, the appellant's case manager at the Department, was present at the sentencing hearing and was given an opportunity by the primary judge to raise any matters not covered in the Department's Report (ts 17 - 18). Defence counsel made a substantial plea in mitigation, which included information about the appellant's current and past personal circumstances, and the rehabilitation programmes he had recently
(Page 28)
- undertaken and was proposing to undertake. Although his Honour noted that 'there's a lot of material here', he provided defence counsel with an opportunity to adjourn the proceedings 'if you think there's something that I don't know about that could change the view I hold' (ts 13). Defence counsel discussed this issue with the appellant, and elected to proceed to sentencing immediately. She stated that 'there's certainly nothing else that really can be said on behalf of the defence' (ts 14).
77 The primary judge noted that he was aware of the appellant's background (ts 12). His Honour made reference to the relevant facts and circumstances 'both in relation to offending, programmes, personal circumstances' (ts 13), and he mentioned all mitigating factors (ts 17 - 18, 23 - 24).
78 The primary judge was entitled to form the view, based on the appellant's extensive criminal history and his pattern of re-offending after release from custody, that the appellant had a 'high probability' of re-offending etc, within s 124(1)(d). Indeed, as I have said when considering ground 2, this view was the only conclusion reasonably open on the information before his Honour.
Ground 1: did the primary judge err by determining that the appellant was at a 'high probability' of committing further offences etc without any or adequate regard to material as to the nature of the appellant's previous history, including his history of re-offending after release from custody?
79 The appellant's complaint that the primary judge erred by determining that the appellant was at a 'high probability' of committing further offences etc without any or adequate regard to material as to the nature of the appellant's previous history, including his history of re-offending after release from custody, is, at least in part, a complaint about the attribution of weight to a relevant sentencing consideration.
80 An alleged failure by a sentencing judge to give any or adequate weight, or a complaint that a sentencing judge gave excessive weight, to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ); Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA, McLure P & Mazza J agreeing). A complaint about the attribution of weight to a particular sentencing factor therefore does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene.
(Page 29)
81 In my opinion, it is apparent from the facts and circumstances set out at [37] - [42] above that his Honour took into account material as to the nature of the appellant's previous history, including his history of re-offending after release from custody.
82 There is no reasonable basis for concluding that the weight which his Honour accorded to this relevant consideration, in arriving at his determination, amounted, in substance, to a failure to exercise the sentencing discretion conferred on him.
Ground 1: conclusion
83 Ground 1 fails.
Ground 3: general
84 Counsel for the appellant relied on two alleged errors in relation to ground 3. First, it was submitted that the primary judge erred by 'sentencing on the basis that primary consideration being given to the protection of the community necessarily required a lengthier period of detention'. Secondly, it was submitted that his Honour erred by 'treating protection of the community as requiring "primary" and so added weight to [be given to] personal and general deterrence'. I will consider each of these alleged errors in turn.
Ground 3: did the primary judge err by sentencing on the basis that primary consideration being given to the protection of the community necessarily required a lengthier period of detention?
85 Where div 9 of pt 7 of the Act applies to an offender, s 125 requires the court, in disposing of the matter, to give primary consideration to the protection of the community ahead of all other principles and matters referred to in s 46.
86 Section 125 does not exclude the other principles and matters referred to in s 46. Those principles and matters continue to be relevant sentencing factors, but primacy is to be given to the protection of the community.
87 The primary judge said in relation to this issue:
The other principles are irrelevant [sic]. They're just not given the same amount of weight relatively speaking that they otherwise would be because s 125 says the protection of the community needs to be given primary consideration, not that it receives exclusive consideration and the other principles fall away. It doesn't say that (ts 15 - 16).
(Page 30)
88 It is apparent when this passage is read as a whole that there is either a transcription error or an inadvertent slip by his Honour in the first sentence. The first sentence should read to the effect that the other principles are relevant or not irrelevant. The balance of the passage clearly recognises the continuing application of the other objectives and principles referred to in s 46.
89 The primary judge's approach to s 125 is consistent with the decisions of the Court of Criminal Appeal in AM (a child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996) 12 - 14 (Franklyn, Wallwork & Murray JJ) and R v KC [2003] WASCA 144 [57] (Roberts-Smith J). These cases are authority for the proposition that s 125 does not imply an abandonment of the general principles that apply to the sentencing of young offenders. Rather, s 125 requires that a different emphasis be given in the application of these principles.
90 In the present case, the primary judge expressly noted that he was taking into account the issue of rehabilitation and a range of mitigating matters, but, by reason of s 125, additional weight had to be given to the protection of the community as a sentencing factor (ts 23 - 24). The length of the sentence of detention that his Honour imposed on the appellant was not determined solely by reference to the operation of s 125. His Honour gave careful consideration to various factors that were relevant to the sentencing process.
91 The primary judge did not proceed on the basis that the requirement to accord primacy to the protection of the community as a sentencing factor, necessarily required a lengthier period of detention. The individual sentences and the total effective sentence were arrived at by adopting the instinctive synthesis approach to sentencing. His Honour evaluated and weighed all relevant sentencing factors.
Ground 3: did the primary judge err by treating protection of the community as requiring primary and so added weight to be given to personal and general deterrence?
92 On a fair reading of the transcript of the sentencing hearing as a whole, there is nothing to indicate that, by reason of s 125, the primary judge gave additional weight to any sentencing factor other than the protection of the community. Where the protection of the community is the primary sentencing factor, this may, in a particular case, require the imposition of a sentence of detention or a lengthier sentence of detention than would otherwise be the case. As I have mentioned, it is settled law in Western Australia that although, in general, personal and general
(Page 31)
- deterrence have a tempered role in the sentencing of young offenders, those sentencing factors may become a significant consideration where, in a particular case, the rehabilitation of the offender appears unlikely, the offending or course of offending is serious, or the character and personal circumstances of the offender justify it. In the present case, personal and general deterrence were important sentencing factors.
Ground 3: conclusion
93 Ground 3 fails.
Ground 4
94 Ground 4 alleges, in essence, that each of the individual sentences is manifestly excessive and the total effective sentence infringes the first limb of the totality principle.
95 A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an inferred error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
96 A complaint that a sentencing judge has infringed the totality principle also involves an allegation of inferred error. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate).
97 The guidance afforded by comparable cases is flexible rather than rigid. See Quach v The Queen [1999] WASCA 210 [27] (Ipp J, Wallwork & White JJ agreeing). The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the
(Page 32)
- exercise of the sentencing discretion in the particular case miscarried. See Ly v The Queen [2007] NSWCCA 28 [20] (Adams J, Howie & Price JJ agreeing); R v Baldock [2010] WASCA 170; (2010) 243 FLR 120 [147] (Buss JA).
98 The maximum available penalty for aggravated burglary, contrary to s 401(2)(a) of the Code, is 20 years' imprisonment. The maximum available penalty for assaulting a public officer, contrary to s 318(1)(d) of the Code, is 7 years' imprisonment.
99 By s 118(1)(b) of the Act, if the statutory penalty for an offence is or includes imprisonment and the court dealing with the offender decides to impose a custodial sentence, the court may sentence the offender to a term of detention that is not longer than the term of imprisonment to which the offender would have been liable if the offender were not a young person.
100 Neither counsel for the appellant nor counsel for the State was able to refer the court to any previous sentencing decisions that could reasonably be described as comparable to the present case. I have, however, perused the following cases, cited by counsel for the State, which are of some very limited general assistance. Each of them is distinguishable in varying degrees: R v VC (a child) (Unreported, WASCA, Library No 990142, 23 March 1999); R v KC [2003] WASCA 144; KSB (a child) v The State of Western Australia [2004] WASCA 296; TRK v The State of Western Australia [2011] WASCA 90.
101 It is true that, in the present case, there were a number of mitigating matters. I refer, in particular, to the appellant's youth; his pleas of guilty and genuine remorse; the appellant's tragic background including the death of his father and his minimal contact with his mother; and the appellant's good conduct while in custody.
102 Also, the first limb of the totality principle was of some importance, having regard to the sentence that the appellant was already serving in consequence of his breach of the supervised release order, and his having been in custody between 13 January 2011 and 21 June 2011.
103 However, the appellant's offending behaviour was serious. The following features of his offending are significant:
(a) the offences in question were committed less than a month after the appellant was released from detention on the supervised release order;
(Page 33)
- (b) the appellant entered the complainant's house through a window and stole his mobile telephone, which was resting on the complainant's chest while he was sleeping; and
(c) the appellant used a screwdriver to threaten and intimidate the complainant when he awoke during the burglary and, again, when the appellant later returned to the outside of the complainant's home and the complainant sought to recover his property.
104 When the mitigating factors are evaluated with the seriousness of the offending behaviour and in the context of the primary judge's finding that there was a 'high probability' of the appellant re-offending, it cannot reasonably be concluded that any of the individual sentences was manifestly excessive or that the total effective sentence infringed the first limb of the totality principle. There was no scope for greater leniency despite the appellant's youth and the other matters of mitigation. The justice system had previously made numerous significant and unsuccessful attempts to rehabilitate the appellant. His previous offending had been dealt with, partly by community based orders or other non-custodial dispositions, and partly by periods of detention. The fact that the appellant has a criminal record and that previous sentences have not achieved the purposes for which they were imposed are not, of course, aggravating factors. However, they form a proper basis for deciding that the appellant should not be extended leniency, or a discount on an otherwise appropriate sentencing outcome, for good character or progress towards rehabilitation. Personal and general deterrence in relation to the offences the subject of this appeal were important sentencing considerations. None of the individual sentences was unreasonable or plainly unjust. Also, the total effective sentence was a just and appropriate measure of the appellant's total criminality after taking into account the sentence of detention that he was currently serving and all relevant circumstances (including those referable to him personally).
105 Ground 4 fails.
The outcome of the appeal
106 The appeal should be dismissed.
107 MURPHY JA: I have had the advantage of reading, in draft, the reasons of Buss JA. I agree with his Honour's reasons in relation to grounds 1, 3 and 4.
108 Section 124(1)(d) of the Young Offenders Act 1994 (WA) provides:
(Page 34)
- 124. When this Division applies
(1) This Division applies to the sentencing of the offender for a serious offence (the current offence) if -
...
(d) the court, after taking into account the offender’s history of re-offending after release from custody, is satisfied that there is a high probability that the offender would commit further offences of a kind for which custodial sentences could be imposed.
110 Section 124(1)(d) involves the court in making a prediction about whether the offender 'would' commit further offences of a particular kind (those for which a custodial sentence could be imposed). It is not in terms directed to the court being satisfied as to an existing fact or a past event. Nor could the test postulated in s 124(1)(d) be accurately described as impliedly directing attention to nothing more than an existing state of affairs. For example, the relevant test does not require the court simply to be satisfied that the offender is of a character that makes him or her susceptible to reoffending of the requisite kind. Rather, the provision is directed to an hypothetical future event, about which the court is to be satisfied taking into account the mandatory consideration of the offender's history of reoffending, and any other relevant considerations arising from the subject matter, scope and purpose of s 124, properly construed.
111 Further, it is to be noted that the provision is not expressed in terms of the court being 'satisfied ... to a high degree of probability'. The words 'high probability' in s 124(1)(d) are not qualifiers of the word 'satisfaction'. The word 'satisfaction', where it appears in s 124(1)(d) is unqualified, and in its context and having regard to the subject matter of which the court has to be satisfied - its prediction of an event - means, in my view, no more, and no less, than reasonable satisfaction.
112 The words 'high probability' refer to the court's assessment of the chance of the offender reoffending in the relevant sense. The language of the section, in my view, directs attention to the degree of probability of the future event occurring, rather than to the standard of proof, as that concept is conventionally understood and applied in the general law: see Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 639 - 640, 642 - 643; Sellars v Adelaide Petroleum NL [1994] HCA 4;
(Page 35)
- (1994) 179 CLR 332, 355; cf Fernandez v Government of Singapore [1971] 1 WLR 987, 993 - 994; and see Murray v Murray (1960) 33 ALJR 521, 524 - 525 and Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 as to the two standards of proof under the general law.
113 The requirement for the chance to be assessed as a 'high probability' is presumably intended to reflect an appropriate degree of caution or circumspection in applying a modification of the sentencing principles which would ordinarily apply to a juvenile offender. The words 'high probability' would, in ordinary parlance, signify a chance somewhere in excess of or beyond a bare probability (just over evens) and less than a certainty: cf Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; (2007) 70 NSWLR 448 [85]; RJE v Secretary to the Department of Justice [2008] VCSA 265; (2008) 21 VR 526 [44].
114 Beyond those observations, there is the risk that in an attempt to interpret the words, the court may end up substituting a different statutory formula for the one used by Parliament. A search to introduce some mathematical calculus better to define the words 'high probability' would be elusive and futile. The court can, and should, do no more than be reasonably satisfied that the chances are such that there is a 'high probability' that the offender would reoffend in the relevant way.
115 Buss JA has set out the way that the primary judge approached the application of s 124(1)(d). In my view, his Honour applied the provision in accordance with its correct construction as I have endeavoured to explain it above.
116 I would dismiss the appeal.
117 HALL J: I agree with Buss JA.
19
44
3