MC (a child) v The Queen
[2003] WASCA 205
•5 SEPTEMBER 2003
"MC" (A CHILD) -v- THE QUEEN [2003] WASCA 205
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 205 | |
| COURT OF CRIMINAL APPEAL | 05/09/2003 | ||
| Case No: | CCA:34/2003 | 11 AUGUST 2003 | |
| Coram: | STEYTLER J MCLURE J PULLIN J | 11/08/03 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | "MC" (A CHILD) THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Child offender Serious offences Relevance of and weight to be accorded to general deterrence Turns on own facts |
Legislation: | Children's Protection and Young Offenders Act 1979 (SA), s 7(e) Young Offenders Act 1994 (WA), s 7(d), s &(1), s 46(1), s 46(3) |
Case References: | AM (A Child) & Anor v The Queen, unreported; CCA SCt of WA; Library No 960263; 15 May 1996 R v DP (A Child) [2003] WASCA 92 R v KC [2003] WASCA 144 R v S (A Child) (1982) 31 SASR 263 R v Wilson (1984) 35 SASR 200 "B" (A Child) v The Queen (1995) 82 A Crim R 234 "C" (A Child) v The Queen (1995) 83 A Crim R 561 R v "S" (A Child) (No 2) (1992) 7 WAR 434 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "MC" (A CHILD) -v- THE QUEEN [2003]
WASCA 205 CORAM : STEYTLER J
- MCLURE J
PULLIN J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Child offender - Serious offences - Relevance of and weight to be accorded to general deterrence - Turns on own facts
Legislation:
Children's Protection and Young Offenders Act 1979 (SA), s 7(e)
Young Offenders Act 1994 (WA), s 7(d), s &(1), s 46(1), s 46(3)
(Page 2)
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Mr N J Mullany
Respondent : Mr D Dempster
Solicitors:
Applicant : Babington Lawyers
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
"AM" (A Child) & Anor v The Queen, unreported; CCA SCt of WA; Library No 960263; 15 May 1996
R v "DP" (A Child) [2003] WASCA 92
R v KC [2003] WASCA 144
R v S (A Child) (1982) 31 SASR 263
R v Wilson (1984) 35 SASR 200
Case(s) also cited:
"B" (A Child) v The Queen (1995) 82 A Crim R 234
"C" (A Child) v The Queen (1995) 83 A Crim R 561
R v "S" (A Child) (No 2) (1992) 7 WAR 434
(Page 3)
1 STEYTLER J: I have had the advantage of reading the reasons for decision prepared by McLure J. They reflect my own reasons for dismissing the application for leave to appeal.
2 MCLURE J: The applicant applied for leave to appeal against sentence. The Court dismissed the application at the hearing. These are my reasons for doing so.
3 The applicant pleaded guilty in the Children's Court of Western Australia to four offences for which she was sentenced as follows:
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so as to cause fear |
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4 The sentences were ordered to be served concurrently. Thus, the applicant received an effective term of imprisonment of 20 months. She was made eligible for parole.
5 The applicant was born on 22 March 1985. The offences the subject of the appeal were committed on 19 October 2002 at which time the applicant was just over 17 and a half years old. She had no prior convictions.
6 At the time of sentencing, the applicant was 32 weeks pregnant. The child was born on 7 May 2003 and is with the applicant at Rangeview. The applicant is eligible for release on parole on 22 September 2003.
7 There are two proposed grounds of appeal. They are:
"1. The learned sentencing Judge erred in affording primacy to issues of deterrence in circumstances where those considerations were properly to be seen as outweighed by the significant mitigatory considerations present.
Particulars
(a) The facts that the Applicant was a first offender, had made extraordinary progress since her arrest,
(Page 4)
- was an expectant mother with access to good stable family support and was unlikely to re-offend rendered the need for personal deterrence very much a secondary consideration.
- (b) The unique circumstances of the case reduced the need for general deterrence to play any significant role in the sentencing process and operated to make it an inappropriate vehicle for the use of general deterrence as a factor overriding the impact of significant mitigatory considerations.
- 2. Alternatively, the learned sentencing Judge erred in taking into account considerations of general deterrence in circumstances where that factor had no role to play in the sentencing of the juvenile Applicant."
8 The applicant participated in a premeditated vicious armed attack on two strangers who were asleep in their vehicle in an isolated area in the north west of Western Australia. The offences were committed by the applicant and a co-offender, the applicant's boyfriend Dimitrios Kyriakidis, who is the father of the applicant's child. The co-offender smashed the driver's side window of the vehicle. The occupants got out of the vehicle. The co-offender sprayed the driver in the face with pepper spray and struck the passenger several times with a crowbar resulting in injuries which required in excess of 60 stitches. The applicant intervened in the initial stage of the assault. Whilst the co-offender was violently attacking the passenger, the driver of the car armed himself with a piece of wood with the intention of intervening to assist the passenger. The applicant saw this and advanced on the driver with a knife and when she got close to him, the driver abandoned his plan to assist his friend. The co-offender's assault on the passenger continued. The co-offender was also carrying a firearm which he fired at one stage towards the end of the incident. The applicant videotaped the entire incident.
9 For the purposes of the first proposed ground of appeal, the applicant conceded that the sentencing Judge had regard to all relevant factors in the exercise of his sentencing discretion. It is said the errors occurred in the weight given to deterrence, particularly general deterrence, in the exercise of the sentencing discretion. In support of that submission, the applicant relied on the following extract from the sentencing remarks:
(Page 5)
- "… I cannot avoid the conclusion that the offences themselves are so serious and your participation in them was so … (indistinct) … that a sentence of imprisonment is … (indistinct) … You are a first offender and you're only 17. However, your active participation in these offences makes your conduct so serious that in my view I must impose a sentence to personally deter you and far more significantly, act as a general deterrent to other young offenders who may be inclined to take part in senseless acts of gratuitous violence. In my view a term of imprisonment is called for."
10 Both proposed grounds of appeal concern the proper construction of the Young Offenders Act 1994 (WA) ("Act"). It was submitted that the sentences imposed were contrary to the spirit and letter of the Act. This Court has recently considered the policy, purpose and construction of the Act: R v KC [2003] WASCA 144 at [31]-[39] per Murray J, [51]-[53] per Roberts-Smith J; R v "DP" (A Child) [2003] WASCA 92 at [7]-[10] per Malcolm CJ. It is unnecessary to repeat at length what was said in those cases. I will restrict my consideration to the provisions of the Act that bear upon the question of the relevance and weight to be accorded to deterrence, in particular general deterrence, and how the latter is accommodated with the objective of rehabilitation.
11 The starting point is s 46(1) of the Act which deals with the principles and considerations to be applied to young offenders. It provides:
"(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."
13 The Act does not expressly exclude general deterrence as a relevant factor in the sentencing of young offenders. To the contrary, on its proper construction the Act retains general deterrence as a relevant consideration.
(Page 6)
- Section 7 sets out the general principles of juvenile justice. Paragraph (d) of s 7 materially provides:
"The general principles that are to be observed in performing functions under this Act are that –
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(d) the community must be protected from illegal behaviour."
15 Section 7(d) of the Act is to be contrasted with its South Australian equivalent. Section 7(e) of the Children's Protection and Young Offenders Act 1979 (SA) requires the court in sentencing to consider:
"… where appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child." (emphasis added)
16 The Supreme Court of South Australia has construed s 7(e) as an indication that the legislature "has quite clearly eschewed the concept of general deterrence in the treatment of persons under the age of eighteen years": R v S (A Child) (1982) 31 SASR 263 at 266; see also R v Wilson (1984) 35 SASR 200.
17 Unlike the South Australian legislation, s 7(d) is not confined to community protection from the acts of the child being sentenced. If the Parliament of Western Australia intended to exclude general deterrence as a relevant consideration in the sentencing of young offenders, it is to be expected that such an intention would be clearly and expressly manifested. It is not.
18 However, the applicant stopped short of suggesting that general deterrence was irrelevant. The proposition advanced was that, save in exceptional circumstances, general deterrence should not have any role to play in the sentencing of young offenders. As I understand it, this formulation is intended to accommodate Pt 7 Div 9 of the Act whichdeals with young offenders who repeatedly commit offences.
19 The applicant submits that the decision of this Court in "AM" (A Child) & Anor v The Queen, unreported; CCA SCt of WA; Library
(Page 7)
- No 960263; 15 May 1996, cited with approval in R v "DP" (supra) supports the construction contended for or is but a short step from it. The Court in "AM" (supra) said (at 11-12):
"The court has long accepted that in sentencing young persons it will be appropriate to take into consideration matters which are not readily applicable to adults … The rehabilitation or reformation of the young person will generally be regarded as a very weighty consideration in sentencing. That should not be seen to be a consideration in tension with the general aims of sentencing.
The protection of the community, achieved by the imposition of a sentence proportionate to the gravity of the crime, having regard to the particular circumstances of its commission and the circumstances personal to the offender, remains the ultimate aim of the courts. General deterrence as well as particular deterrence must not be lost sight of, but it is particularly the case for young offenders that their rehabilitation is regarded as offering the best guarantee against their continuing offending, and therefore for the protection of the community from their lawless behaviour, where that is seen as a real possibility."
21 The applicant's first proposed ground of appeal is in substance that the sentencing Judge afforded primacy or undue weight to the issue of deterrence in circumstances where those considerations were properly to be seen as outweighed by the personal circumstances of the applicant. Seven matters were relied on. Firstly, the applicant's age at the time of the offending. While youth is a powerful mitigating factor, the weight to be
(Page 8)
given to it varies with the age of the offender. The younger an offender the greater the mitigation: s 7(l) and s 46(3) of the Act; R v KC (supra) at [38] per Murray J.
22 The second, third and fourth factors are related. They are that the applicant was not the architect of the offending, not the principal offender and that she acted under the influence of her co-offender. The co-offender was 29 years old at the time and exerted considerable dominance over the applicant. He abused drugs, was violent and unpredictable when under their influence and suffered from a mental illness. On the other hand, the applicant was an active participant in the violence, was armed, facilitated the continuation of the violent assault on the passenger and videotaped the incident. The sentencing Judge found that the offences were premeditated. Further, there is no suggestion that the applicant was affected by mind altering substances or subject to any particular pressure by the co-offender in relation to her involvement in the offences. That he exerted general dominance and influence over her is accepted. Relevantly, the psychological report notes that the applicant enjoys her subservience, does not like having to take responsibility for situations and that her co-offender made the decisions in their relationship. This impacts on the issue of personal deterrence. The fifth factor is the applicant's pregnancy at the time of sentencing. That is not a significant mitigatory factor. The child is with the applicant and there is no suggestion the facilities at Rangeview are inadequate for the applicant's circumstances. The remaining factors relied on are that the applicant pleaded guilty at the earliest opportunity and had no prior convictions.
23 The nature and circumstances of the offences in this case were very serious. The offences were premeditated, the applicant was armed and voluntarily participated in the violence, the violence was an end in itself, she videoed it and she was over 17 years old at the time. The sentencing Judge had regard and gave appropriate weight to all the relevant mitigatory factors. I discern no error in principle in his approach to sentencing the applicant.
24 Insofar as the applicant's claim is that the sentence is manifestly excessive and thus demonstrates error, it is without merit. Having regard to all of the circumstances, the sentence is not manifestly excessive. Indeed it cannot properly be characterised as excessive. Accordingly, I refused leave to appeal.
25 PULLIN J: I have read the draft reasons of McLure J and agree with those reasons and have nothing further to add.
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