JTP v The State of Western Australia
[2010] WASCA 191
•22 SEPTEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JTP -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 191
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 20 JULY 2010
DELIVERED : 20 JULY 2010
PUBLISHED : 22 SEPTEMBER 2010
FILE NO/S: CACR 85 of 2010
BETWEEN: JTP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :REYNOLDS P
File No :BU 57 of 2010, BU 58 of 2010, CO 4 of 2010, CO 5 of 2010, CO 8 of 2010, CO 34 of 2010
Catchwords:
Criminal law - Sentence - Sentencing of young offender - Whether detention order only appropriate disposition - Turns on own facts
Legislation:
Young Offenders Act 1994 (WA), s 7, s 47, s 101, s 120
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Ms N Stewart
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Ms N Stewart
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
A Child v The State of Western Australia [2007] WASCA 285
F (a child) v The State of Western Australia [2004] WASCA 193
Newton v The State of Western Australia [2006] WASCA 247
Scott v The Queen (Unreported, WASCA, Library No 7607, 14 April 1989)
The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51
The State of Western Australia v Warburton [2004] WASCA 228
TL (a child) v The State of Western Australia [2005] WASCA 173
McLURE P: The appellant sought leave to appeal, and if leave was granted, to appeal against a total sentence of 10 months' detention imposed on him by the President of the Children's Court for one count of aggravated burglary (count 1) and one count of criminal damage by fire (count 2).
At the conclusion of the hearing of the appeal, the court ordered that leave to appeal be granted and the appeal be dismissed. These are my reasons for joining in those orders.
The appellant's grounds of appeal are that the President erred (1) in not imposing a non‑custodial sentence and (2) in placing too much emphasis on general deterrence. Both grounds are, in substance, a claim that the type of sentence imposed is manifestly excessive. The appellant claims that the President erred in failing to impose a conditional release order under s 101 of the Young Offenders Act 1994 (WA) (the Act) or some lesser sentence.
Background
The relevant factual background is as follows. On 28 April 2010, the appellant came before the President for sentencing in relation to six offences. Four of the offences occurred between January 2010 and March 2010. They were aggravated burglary of a dwelling and stealing, which offences were committed between 2 and 3 January 2010; criminal damage to a police holding cell on 13 January 2010; and breaches of a bail condition on 15 March 2010.
The remaining two offences, being counts 1 and 2, formed part of a single transaction for sentencing purposes. The facts of those offences are as follows. In the early hours of Sunday 30 August 2009 the appellant went to the Wilson Park Primary School in Collie with three other juveniles (who have also been charged). The appellant and the other juveniles gained entry to a classroom by removing glass window panes and climbing through the window. Once inside, the appellant searched the classroom and adjoining rooms for property to steal. He also used a permanent marker to graffiti desks and walls. The appellant and the other juveniles then gained entry to another classroom in the adjoining wing of the school, again by removing window panes and climbing through. They left that classroom after their searches failed to locate anything of value. Two of the juveniles returned to the first classroom broken into and attempted to set alight a pin‑up board using their cigarette lighters. They then entered another classroom and the appellant followed them inside. The appellant and the two juveniles then proceeded to ignite several items in the classroom with their cigarette lighters. The appellant recalled lighting papers and string that were strung across the classroom. The appellant and his co‑offenders became concerned and fearful when the fire took hold and they left the premises. By the time emergency services arrived the fire was out of control. The fire destroyed the school. The total cost of the damage to the school and its contents was in excess of $2.2 million.
The appellant was born on 15 March 1995 and was aged 14 at the time he committed the offences the subject of counts 1 and 2. He entered a fast‑track plea of guilty to all charges. He is the only person to plead guilty to the charge of criminal damage by fire (commonly known as arson). The appellant's plea of guilty is a weighty sentencing factor in his favour. The appellant, no doubt with the guidance and strong support of his family, has demonstrated both remorse and courage in admitting and taking responsibility for his part in causing the loss of the school.
Sentencing
After hearing submissions and evidence on 28 April 2010 the President adjourned the sentencing hearing in order to give consideration to the appropriate sentencing disposition. On 26 May 2010 the President imposed a sentence of 5 months' detention on count 1 and 10 months' detention on count 2. He ordered that the terms of detention be served concurrently, resulting in a total sentence of 10 months' detention. He imposed no sentence for the remaining four offences.
In sentencing the appellant the President took into account all relevant mitigating factors, in particular, his very young age, lack of any prior convictions, fast‑track pleas of guilty, remorse and his family support. He noted that the appellant had ceased associating with negative peers and concluded that personal deterrence did not need to be given any weight.
However, the President concluded that the offending on 30 August 2009, in particular the arson, was very serious. He found that the lighting of the papers in the classroom by the appellant was deliberate and caused the fire which spread and resulted in extensive damage. He also concluded that the appellant was old enough to know that if a person lights a fire it can get out of control. Finally, the President noted that the appellant did not contact anyone, even after it became obvious to him that a fire was taking hold.
The President also took into account the significant trauma and disruption caused to students, teachers, administrative staff and the general Collie community by the destruction of the school. The President concluded:
My view is that the seriousness of the factual circumstances of the arson and burglary in combination where the Collie Primary School has been wholly destroyed and the impact of that on the community, and the need for general deterrence for that outweighs everything else … such that only immediate detention is appropriate.
Relevant legal principles
This court cannot intervene to set aside a sentencing decision unless it is established that the sentencing judge made an express or implied material error of fact or law. Ordinarily, a sentencing judge does not make an appealable error by giving excessive or inadequate weight to a relevant sentencing factor.
The principles for sentencing young offenders were summarised in The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51 in this way:
The principles and considerations to be applied to the sentencing of young offenders are contained in ss 7, 47 and 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, 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].
However, it is not the case that young offenders can never receive a sentence of detention. So much was made clear in F (a child) v The State of Western Australia [2004] WASCA 193 where Wheeler J said (Templeman & Miller JJ agreeing):
Accepting that the appropriate sentencing principles are those referred to by the applicant's counsel, nevertheless, the result does not follow that juvenile offenders ‑ even those with no previous record and good personal circumstances ‑ should never receive custodial sentences. Plainly, as with adult offenders, there is a need to have regard to the circumstances of the offence as well as the circumstances of the offender. These considerations
are weighed differently in respect of juvenile offenders, but regard must be had to each [14].
In proper circumstances, the seriousness of an offence and the circumstances of its commission can require the imposition of a sentence of detention: A Child v The State of Western Australia [2007] WASCA 285; TL (a child) v The State of Western Australia [2005] WASCA 173 [19].
Grounds 1 and 2
The President imposed sentences of detention on counts 1 and 2 because he had concluded that general deterrence was a weighty sentencing factor in all the circumstances of the case. He reached that conclusion because of the very serious nature of the offences, in particular that of criminal damage by fire; the seriousness of the circumstances of the offending (the appellant's deliberate act in starting a fire which he knew could get out of control and his failure to raise the alarm when he saw that the fire was taking hold); and the great detriment it caused to members of the school community and the broader Collie community.
This court has repeatedly stated that the offence of arson is very serious and that general deterrence is ordinarily a dominant sentencing consideration: The State of Western Australia v Warburton [2004] WASCA 228 [17]; Newton v The State of Western Australia [2006] WASCA 247. In Newton, this court upheld a sentence of immediate imprisonment of a 19‑year‑old offender with excellent antecedents who lit a fire that caused property damage valued at around $70,000.
In appropriate circumstances extreme youth can significantly reduce the importance of general deterrence even for very serious offences: Scott v The Queen (Unreported, WASCA, Library No 7607, 14 April 1989). However the President, after giving the matter very careful and considered attention, provided compelling reasons why that should not be so in this case. I was satisfied that the President did not make any appealable error of fact or law in coming to his conclusion that a sentence of detention was the only appropriate sentence.
BUSS JA: I joined in the orders made on 20 July 2010 for the reasons to be published by McLure P.
MAZZA J: I agree with McLure P.
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