LJL (a child) v Mason
[2013] WASC 465
LJL (a child) -v- MASON [2013] WASC 465
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 465 | |
| Case No: | SJA:1127/2013 | 4 DECEMBER 2013 | |
| Coram: | HALL J | 19/12/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | LJL (a child) RYAN LEONARD MASON |
Catchwords: | Criminal law Appeal against sentence Juvenile sentenced to detention Multiple offences of burglary Whether total effective sentence of 3 months' detention breached totality principle Whether prospects of rehabilitation considered Whether written reasons for imposing detention were required |
Legislation: | Young Offenders Act 1994 (WA), s 120 |
Case References: | DBW (a child) v The State of Western Australia [2011] WASCA 206 MC (a child) v The Queen [2003] WASCA 205 P (a child) v Thompson [2011] WASC 120 TL (a child) v The State of Western Australia [2005] WASCA 173 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
RYAN LEONARD MASON
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P HOGAN
File No : CC 459 of 2013, CC 460 of 2013, CC 559 of 2013, CC 566 of 2013, CC 567 of 2013, CC 568 of 2013, CC 569 of 2013, CC 570 of 2013, CC 571 of 2013, CC 625 of 2013
Catchwords:
Criminal law - Appeal against sentence - Juvenile sentenced to detention - Multiple offences of burglary - Whether total effective sentence of 3 months' detention breached totality principle - Whether prospects of rehabilitation considered - Whether written reasons for imposing detention were required
Legislation:
Young Offenders Act 1994 (WA), s 120
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S A Gabriel
Respondent : Ms T McArthur
Solicitors:
Appellant : Stephen Gabriel
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
DBW (a child) v The State of Western Australia [2011] WASCA 206
MC (a child) v The Queen [2003] WASCA 205
P (a child) v Thompson [2011] WASC 120
TL (a child) v The State of Western Australia [2005] WASCA 173
- HALL J:
Introduction
1 On 7 November 2013, the appellant, who is a juvenile, was sentenced in the Children's Court to a total effective term of 3 months' detention. That sentence was imposed in respect of three offences of aggravated burglary, two offences of burglary, one offence of assault occasioning bodily harm and one offence of criminal damage. He now seeks leave to appeal against that sentence.
2 In essence, the issue is whether the total effective sentence was too long having regard to the appellant's youth, the fact that he pleaded guilty to the charges and that he has good prospects of rehabilitation. In particular, it is contended that the appellant had responded well to a youth conditional release order imposed for other offences on 22 August 2013. It is submitted that the magistrate who imposed the sentence of immediate detention on 7 November 2013 erred in the exercise of his discretion by imposing a sentence which had the effect of preventing the continued operation of the youth conditional release order.
3 Section 41 of the Children's Court of Western Australia Act 1988 (WA) (Children's Court Act) provides that a decision of a magistrate can be the subject of an appeal to this court under pt 2 of the Criminal Appeals Act 2004 (WA). Sentencing decisions can also be reviewed by the president of the Children's Court pursuant to s 40 of the Children's Court Act. That provision affords a simple alternative to an appeal in the case of sentences imposed by magistrates in the Children's Court. Whilst there is no prohibition on appealing a sentence imposed by a magistrate to this court, a review under s 40 will generally be the preferable course. No explanation was provided as to why that course was not followed in this case, other than that counsel had instructions to pursue an appeal.
Facts
4 The facts of the offences were not disputed. Those facts were as follows. At about 4.30 pm on Sunday, 28 April 2013 the appellant was at an oval in Beeliar. He was on a bicycle and started to chase another juvenile who was on a scooter. The other juvenile dropped his scooter which was picked up by the appellant. The appellant then returned to where the complainant, a friend of the juvenile who had fled on the scooter, was standing. The appellant hit the complainant to the left side of his face with the scooter, demanding that the other juvenile come back. When this demand was unsuccessful, the appellant punched the complainant to the right side of his face, followed by a punch to the left side. The complainant suffered bruising under his right eye and soreness to both sides of his face. When later arrested and interviewed, the appellant said he could not remember the incident (assault occasioning bodily harm - charge 559 of 2013).
5 At about 1.40 pm on Friday, 5 July 2013 the appellant attended at a house in Meadow Springs. He gained entry to the premises by unknown means and without the consent of the owner. Once inside the house he stole items, including digital cameras, knives and a mobile telephone to the total value of approximately $1,600. A forensic examination of the house resulted in the location of a pair of socks on which was found DNA matching the appellant (burglary - charge 566 of 2013).
6 On Thursday, 11 July 2013 the appellant attended at a house in South Lake in company with two others. He gained entry to the premises without the consent of the owner and stole property. The property included a PlayStation console, an iPad, four PlayStation games, an e-reader, a watch and coins to the total value of $1,550 (aggravated burglary - charge 625 of 2013).
7 Between 12.00 pm and 4.00 pm on Monday, 22 July 2013, the appellant and a number of co-offenders attended at another house in South Lake. One of the co-offenders broke a window in order to affect entry to the house. The house was being renovated at the time. Inside the house the appellant and the co-offenders located a paint tray and tin containing white paint. They proceeded to throw paint onto walls, windows, floors, carpets, doors and the outside entertaining area. Putty was also used to stick items to the wall and to write offensive words. Shoe polish was used to damage a kitchen benchtop. The window of a garden shed was smashed and a padlock damaged. The appellant and the co-offenders were disturbed at the scene and fled through the front door. A forensic examination located a white glove on which was found DNA that matched the appellant. When interviewed the appellant made full admissions and said that the offence was committed because 'we were bored'. The cost of the damage was $2,042.51 (burglary and criminal damage - charges 568 and 569 of 2013).
8 Between 10.15 am and 3.50 pm on Tuesday, 23 July 2013 the appellant attended at another house in South Lake. He gained entry by smashing a rear bedroom window. Once inside the appellant stole items, including a video camera and jewellery to the total value of $2,954. A forensic examination of the scene resulted in the location of socks on which was found DNA that matched that of the appellant (aggravated burglary - charge 570 of 2013).
9 At about 12.30 pm on Monday, 5 August 2013 the appellant was in company with two other juvenile males in Jandakot. The appellant jumped over a limestone wall and into the backyard of residential premises. He and the co-offenders then gained access to a shed and removed gardening gloves. The appellant then used a doona cover on a nearby table and a brick to break a small ensuite window and gain entry to the house. Once inside the appellant and the co-offenders went to several rooms in the house, opening drawers and removing items. In the master bedroom the appellant stole jewellery from a jewellery box to the value of approximately $2,000. A bottle of perfume was also stolen. The appellant and the co-offenders left the property and ran across Kwinana Freeway where they were seen by an off-duty police officer. On being challenged the appellant and the co-offenders ran away but the appellant was later arrested at a house in Beeliar. He was interviewed and made admissions to entering the house (aggravated burglary - charge 459 of 2013).
Court history
10 The appellant had committed a string of similar offences throughout 2013. On Thursday, 16 May 2013, he appeared in the Fremantle Children's Court on a number of charges, including aggravated burglary and aggravated assault with intent to rob, for which he was placed on a 4 month intensive youth supervision order (IYSO). On Thursday, 4 July 2013, he, again, came before the Fremantle Children's Court for offences including aggravated burglary and aggravated assault with intent to rob. Two of the offences that were dealt with on that day were committed in breach of the IYSO imposed on 16 May 2013. That order was cancelled and a new IYSO of 6 months' duration was imposed.
11 The appellant then appeared in the Perth Children's Court on 22 August 2013 on a number of offences, including aggravated robbery, aggravated burglary and aggravated assault with intent to rob. One of those charges, the aggravated robbery, had been committed on the evening of Thursday, 4 July 2013, the day on which he had last appeared in the Fremantle Children's Court. On this occasion, a youth conditional release order of 6 months' duration was imposed. All of the offences dealt with on 7 November 2013, other than the assault occasioning bodily harm, were committed in breach of the IYSO imposed on 4 July 2013. One of those offences, the burglary on the house at Meadow Springs, was committed on Friday, 5 July 2013, the day following the imposition of the IYSO.
12 The magistrate who dealt with the appellant on 7 November 2013, had available to him a court report detailing the appellant's response to supervision. As was evident from the fact of his re-offending, the report noted that the appellant's response to the first two IYSOs was less than satisfactory. In addition to re-offending he had also failed to attend supervision, counselling and school on a number of occasions. However, his response to the youth conditional release order imposed on 22 August 2013 was described as 'very good'. He had attended his supervision appointments and engaged well with his youth justice officer. He had attended psychological counselling appointments as required and his school attendance had greatly improved.
Was the total effective sentence too long?
13 The appellant's counsel submitted that by the time the appellant came to be sentenced on 7 November 2013 he had shown significant progress whilst on the youth conditional release order. It was said that this demonstrated that there had been a marked change in attitude and that the prospects of rehabilitation were good. It was submitted that this was a factor that made the imposition of a period of detention to be immediately served inappropriate. The effect of that sentence was to prevent the continuation of the youth conditional release order and the progress towards rehabilitation.
14 It is apparent that on each of the occasions that the appellant appeared in the Children's Court he was not dealt with for all of the offences that he had committed to that point in time. It is not clear why this occurred. It may be that not all of the offences had come to light. In any event it was conceded by the appellant's counsel that if all of the offences dealt with on 7 November 2013 had been before the Children's Court on 22 August 2013 it is very likely that the appellant would have received a period of immediate detention at that stage, rather than the youth conditional release order. However, that having not occurred, it was submitted that it was appropriate for the magistrate on 7 November 2013 to take into account that the appellant had committed no further offences since 22 August 2013 and had performed well on the youth conditional release order.
15 The magistrate was required to sentence the appellant in accordance with the principles contained in the Young Offenders Act 1994 (WA). Those principles include that a young offender only be given a custodial sentence as a last resort and, if required, it only be for as short a time as necessary: s 7(h) and s 46. Rehabilitation is a particularly important consideration in respect of children: P (a child) v Thompson [2011] WASC 120 [13]. However, youth and the need for particular emphasis to be placed on rehabilitation does not mean general deterrence is not an important sentencing consideration where the offending is serious and the character and the antecedents of the offender justify it: DBW (a child) v The State of Western Australia [2011] WASCA 206 [33]; and MC (a child) v The Queen [2003] WASCA 205 [20].
16 When dealing with a young person who has been found guilty of an offence, the court is required to consider any information about the offender or the offence that may assist the court to decide how to dispose of the matter. Section 46 of the Young Offenders Act sets out a number of factors that the court is required to have particular regard to. They include the nature and seriousness of the offence, any history of previous offending and any previous orders made by the court. The court is required 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. The court is required to consider how young the offender is as a mitigating factor.
17 In TL (a child) v The State of Western Australia [2005] WASCA 173, the offender was sentenced by the president of the Children's Court on three counts of assault occasioning bodily harm to 2 months' immediate detention on two counts, and 3 months' immediately detention on the third count. The appellant in that case was 11 years of age at the time of the offending and had no prior criminal history. The facts of the case were that the appellant became involved in a fight with other young people at a train station. He punched one of the victims to the back of the head with a clenched fist, and punched another in the face. As the victims were attempting to leave the scene, the appellant picked up a number of large stones and threw them at one of the victims. One of the stones hit a victim in the head. The appellant then punched and kicked one of the victims. The assaults only stopped because transit guards arrived at the scene and the offender and his co-offenders fled. On appeal, Wheeler JA said that the appellant's youth was a powerful mitigating factor and his rehabilitation was a very important consideration, however it was not the case that an offender as young as the appellant with an unblemished record could not be subjected to a custodial sentence. If the serious nature and circumstances of the offences and need for punishment, deterrence and the protection of the community called for it, a sentence of detention could be imposed.
18 In the present case, the appellant is also very young. He was aged 12 at the time of the offences. His youth was an important consideration. There was some indications that his personal circumstances had recently changed and had acquired some insight and greater maturity. The prospects of rehabilitation had improved. These were clearly important considerations, but they were not the only ones. The fact that the appellant had shown an improved attitude to supervision did not mean that any past offences, however serious they may be, could not be dealt with by a period of detention. The seriousness of the offences and the fact that many of them were committed whilst the appellant was subject to previous supervision orders were also important considerations.
19 There is nothing to suggest that the magistrate did not have regard to the report indicating that the appellant had recently made positive changes and was responding well to supervision. However, the offences were of a very serious nature. It is impossible to conclude that a total effective sentence of 3 months' detention was not open to the magistrate in the proper exercise of his discretion.
Written reasons
20 At the hearing of the appeal counsel for the appellant sought to add a further ground to the effect that the sentence imposed on 7 November 2013 was invalid because the magistrate had failed to provide written reasons for his decision, and thereby failed to comply with s 120 of the Young Offenders Act.
21 As at 7 November 2013, s 120 provided as follows:
Custodial sentence is sentence of last resort
(1) The court cannot impose any custodial sentence unless it is satisfied that there is no other appropriate way for it to dispose of the matter.
(2) A court that imposes on a young person a custodial sentence is to record in writing the reasons why it considers that there is no other appropriate way for it to dispose of the matter.
22 That section has now been amended to provide that written reasons can include reasons that are given orally and subsequently transcribed, or given orally but also recorded electronically in a format that enables them to be subsequently transcribed. The amendment came into effect on 25 November 2013. The explanatory memorandum to the amending Act states that the amendment 'expands the meaning of "written reasons" in this section to ensure consistency with other legislative provisions where written reasons are defined to include reasons given orally and subsequently transcribed or recorded electronically and able to be transcribed'. This might suggest that prior to the amendment, the oral delivery of reasons that were later transcribed would not have complied with the requirement of s 120.
23 The appellant's counsel submitted that as no written reasons had been provided by the magistrate on 7 November 2013, there had been a failure to comply with s 120 as it then stood. He said that subsequent requests for written reasons had not resulted in such reasons being provided. For these reasons there was said to have been an error that justified the allowing of the appeal and the resentencing of the appellant.
24 Section 14(2) of the Criminal Appeals Act provides that, even if a ground of appeal might be decided in favour of an appellant, the court can dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. In the present case, even if the appellant's argument regarding the requirement for the provision of written reasons is correct, I do not consider that any sentences other than those that were imposed would have been appropriate. In those circumstances any error in regard to written reasons caused no substantial miscarriage of justice. The section having now been amended, the argument raised by the appellant is unlikely to have significance beyond this case and it is therefore unnecessary to consider it further.
Conclusion
25 I am not satisfied that any of the grounds has a reasonable prospect of succeeding. In these circumstances, the appeal is taken to have been dismissed: s 9 of the Criminal Appeals Act. The orders are therefore as follows:
1. Leave to appeal is refused.
2. Appeal dismissed.
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