KSB (a child) v The State of Western Australia
[2004] WASCA 296
•19 NOVEMBER 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: "KSB" (A CHILD) -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 296
CORAM: MILLER J
MCKECHNIE J
MCLURE J
HEARD: 19 NOVEMBER 2004
DELIVERED : 19 NOVEMBER 2004
FILE NO/S: CCA 88 of 2004
BETWEEN: "KSB" (A CHILD)
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No : CCA 88 of 2004
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :REYNOLDS J
Citation :SUPPRESSED
File No :CC 846 of 2004, CC 847 of 2004, CC 1797 of 2004, CC 1789 of 2004, CC 1798 of 2004, CC 1604 of 2004
Catchwords:
Sentencing - Young offender - Sexual assault and burglary - No new principles
Legislation:
Young Offenders Act 1994 (WA)
Result:
Appeal allowed
Detention reduced
Category: D
Representation:
Counsel:
Appellant: Mr J I Brash & Ms C E Murray
Respondent: Mr B Fiannaca
Solicitors:
Appellant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
R v C (a Child) 83 A Crim R 561
R v KC [2003] WASCA 144
Case(s) also cited:
R v Heferen (1999) 106 A Crim R 89
R v Pezzino (1997) 92 A Crim R 135
R v Ward (1999) 109 A Crim R 159
MILLER J: I agree with the reasons delivered by McKechnie J and the orders he proposes. I have nothing further I wish to add.
MCKECHNIE J: On 13 February 2004, at about 4.00 am the applicant, then aged 16 years, and apparently under the influence of both alcohol and cannabis, broke into a house in Midvale knowing that there were people at home. The purpose of the burglary was to steal money. During the course of moving through the house the applicant entered a bedroom and found an 11‑year‑old girl fast asleep in her bed. He sexually penetrated her by forcing a finger into her anus. He left the house but was pursued by her brother who managed to grab the hair tie from the applicant. So it was that the applicant was traced through his DNA. He was in due course arrested and pleaded guilty at an early opportunity to charges of burglary and sexual penetration.
On 24 May 2004 he was sentenced to a term of 3 years' detention for the offence of sexual penetration of a child under the age of 13 years and 3 years' detention for one charge of aggravated burglary with intent in a dwelling. Each period of detention was ordered to be served concurrently with eligibility for supervised release after 50 per cent of the sentence had been served.
At the same time the applicant was dealt with on two charges of stealing, for which he received 2 months' concurrent detention for each charge, and a breach of a youth community based order which was cancelled. He was sentenced to 2 months' concurrent detention for a charge of assaulting a public officer.
From that sentence he appeals on grounds which I will not set out but summarise in this way: that the complaint in ground 1 is that the sentence was manifestly excessive because the Judge failed to properly consider various matters, chiefly relating to the youth of the applicant.
The second ground is that the Judge made an error of law in imposing a period of detention for the offences of stealing when the maximum prescribed penalty was a fine. That second ground has been conceded. I will deal with it later, but return to the first ground and the offences of burglary and sexual penetration.
The President of the Children's Court had before him a comprehensive plea in mitigation, a pre‑sentence report and a psychological report, together with a letter from the applicant. Evidence was also taken from the applicant's mother and stepfather.
In his sentencing remarks, the President noted the victim impact statement and said that although sentences for digital penetration were generally less than sentences for penile penetration, this particular offence had had a very profound impact upon the victim. The President expressly referred to the sentencing principles set out in the provisions of the Young Offenders Act 1994 and said that he would give great weight to the applicant's youth and rehabilitation, but he also had to take account of the need to protect the community.
The President concluded that general and personal deterrence needed to be given great weight. He noted that there was no record of any previous offence of a sexual nature and also that the applicant had never been detained before and that he was of a relatively young age. The President reduced the sentence he would have imposed expressly by reason of the plea of guilty to one of 3 years' imprisonment, backdated to commence on 20 April 2004.
The submission as to the failure to give sufficient weight to various matters and putting too much weight on others is, of itself, hard to make good, especially because the President expressly referred to these matters. It must be obvious to the President of the Children's Court that he is sentencing young offenders and also obvious that the applicant was, as he said, "relatively young".
The Young Offenders Act and the decisions of this Court place great weight on youth as a mitigating factor and the express need for rehabilitation. Those factors must be weighed against the objective seriousness of the offence and other sentencing principles, including the principle of general and personal deterrence which continue to have effect, even with young offenders, provided adequate recognition is given to the principles contained in the Young Offenders Act and the cases: R v C (a Child) 83 A Crim R 561 and R v KC [2003] WASCA 144.
The fact that the President has apparently taken and given weight to those matters, however, is not the end of the consideration. A sentence may be manifestly excessive or inadequate, as the case may be, because in the end that is a conclusion and if that conclusion is reached by an appeal court, it follows that although the error may not be able to be precisely identified, error there has been.
The applicant in the course of submissions, chiefly the written submissions, referred to some of the principles and sentences in other cases. There is I think an error in too closely aligning the facts of different cases, especially cases of sexual offences where the identification of a tariff has so far proved elusive.
The principles which ordinarily apply to intra‑familial child sexual assaults and paedophilia do not translate into offences such as this where the applicant broke into a house for the purpose of stealing money and opportunistically sexually penetrated a young girl asleep in her bed. The objective criminality is different and must be so judged. The criminality in this case was the interference with the legally protected interests of the complainant in the circumstances I have just described, being sexually penetrated by a stranger in those circumstances.
It is for that reason that I do not necessarily accept that one can compare sentences in other cases in drawing a conclusion as to this case. That is also true in relation to R v KC which was, as I have said, a prosecution appeal and so somewhat different considerations apply in comparing the actual sentence, although the principles contained in that judgment are relevant.
Having said that, however, it does seem that, paying proper regard to the discretion exercised by the President, and what he has taken into account, the sentencing discretion has miscarried in that I conclude a sentence of 3 years' detention is beyond the range of a sound sentencing discretion.
I consider that is so because of the applicant's youth, the fact that this was the first time he was to be detained, the importance, but not over importance, of general deterrence in a case where the applicant was heavily intoxicated, and the other factors outlined in the pre‑sentence report which indicate that while personal deterrence is a factor there is the possibility of counselling to address the applicant's other issues. I am of the view that the sentencing discretion has miscarried in such a way as to justify the interference of this Court.
In relation to the aggravated burglary - the burglary itself, while serious, when one takes away the sexual penetration separately dealt with, is not of such seriousness as to justify a sentence of 3 years' detention. I note the prosecution's submissions, while not formally conceding, do I think at least accept that the sentence was very high.
I would set aside the sentences of 3 years imposed for the sexual penetration and burglary and substitute in lieu a sentence of 2½ years with a consequent reduction of the minimum period to be calculated in accordance with the provisions of the Young Offenders Act s 121(3). I
would impose that, as the President did, to run from the day on which the applicant was taken into custody; 20 April 2004.
That leaves ground 2 and the stealing offence to be dealt with. There was a concession that a sentence of detention was unavailable. Having regard to the items that were stolen and the circumstances of the stealing, the youth of the applicant and the fact that he is, and remains for practical purposes, in detention, I would impose a nominal fine only, not to be taken as a general precedent, of $50 in each case.
In relation to the offence of assaulting a public officer, the sentence was made concurrent with the sentences which I have adjusted and I would not interfere with that sentence.
MCLURE J: I also agree and have nothing to add.
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