Nedi v The State of Western Australia
[2018] WASCA 193
•29 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NEDI -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 193
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 10 OCTOBER 2018
DELIVERED : 10 OCTOBER 2018
PUBLISHED : 29 OCTOBER 2018
FILE NO/S: CACR 166 of 2018
BETWEEN: NEDI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: WAGER J
File Number : AR 701-713 of 2017
Catchwords:
Appeal against sentence - Whether sentence infringed first limb of the principle of totality - Whether the sentence infringed the principle of parity - Turns on own facts
Legislation:
Young Offenders Act 1994 (WA), s 4, s 7, s 46, s 50B, s 118A
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr S B Watters & Mr C S Woodhouse |
| Respondent | : | Mr J A Scholz |
Solicitors:
| Appellant | : | Robertson Hayles Lawyers |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barry v The State of Western Australia [2012] WASCA 175
DC v The State of Western Australia [2014] WASCA 121
Milenkovski v The State of Western Australia [2014] WASCA 48
Ngo v The Queen [2017] WASCA 3
Roffey v The State of Western Australia [2007] WASCA 246
JUDGMENT OF THE COURT:
At the conclusion of the hearing of this appeal, the court made orders refusing leave to appeal and dismissing the appeal. These are our reasons for making those orders.
Introduction
On 23 July 2018, the appellant was sentenced to the following terms of immediate imprisonment, in respect of offences committed during a riot at Banksia Hill Detention Centre on 5 May 2017:
Charge No
Offence
(Code section)
Maximum term of imprisonment
Sentence imposed
AR
705/17
Criminal damage
(s 444(1)(b))
10 years
12 months
Concurrent
AR
712/17
Being armed in a way that may cause fear
(s 68)
7 years
12 months
Concurrent
AR
701/17
Aggravated burglary and commit offence
(s 401(2)(ba))
20 years
12 months
Head Sentence
AR
710/17
Aggravated burglary and commit offence
(s 378)
7 years
No penalty
(s 11 Sentencing Act 1995 (WA))
AR
713/17
Trespass
(s 70A(2))
12 months
2 months
Cumulative
AR
706/17
Criminal damage
(s 444(1)(b))
10 years
12 months
Concurrent
AR
702/17
Aggravated burglary and commit offence
(s 401(2)(ba))
20 years
12 months
Concurrent
AR
708/17
Criminal damage
(s 444(1)(b))
10 years
12 months
Concurrent
AR
703/17
Aggravated burglary and commit offence
(s 401(2)(ba))
20 years
12 months
Concurrent
AR
709/17
Criminal damage
(s 444(1)(b))
10 years
12 months
Concurrent
AR
704/17
Aggravated burglary and commit offence
(s 401(2)(ba))
20 years
12 months
Concurrent
AR
711/17
Stealing
(s 378)
7 years
2 months
Concurrent
Total effective sentence
14 months
The appellant appeals against the total effective sentence on the grounds that it infringes the first limb of the totality principle and the parity principle.
For the reasons which follow, there is no merit in either ground of appeal.
Circumstances of offending
The circumstances of the appellant's offending were as follows:[1]
[1] Sentencing ts 25/6/18, pages 9 - 17; sentencing ts 23/7/18, pages 37 - 38.
On 5 May 2017, the appellant was a detainee in the 'Harding Unit' at the Detention Centre. At about 4.25pm, the appellant was one of 9 detainees from the Harding Unit who started causing damage within the grounds of the unit. The appellant picked up a plastic chair and held it above his head in a threatening manner as he ran towards a youth custody officer. The group then smashed windows and climbed onto the roof, where antennas and ventilation pipes were broken off for use as weapons.
The appellant and his co-offenders then broke into several workshops and storage sheds at Education Unit 1, where they stole items for use as weapons. The stolen items were a screwdriver, cordless angle grinder, portable blowtorch, cordless hammer drill, claw hammer, crowbar, shovels, wrenches, shovel broom handles, steel cap boots, a whipper snipper, two cricket bats, seven fire extinguishers, and keys to a buggy.
They returned to the Harding Unit where an angle grinder was used to release another detainee, RMJ, from a secure exercise yard. The offenders then went around the Detention Centre damaging numerous windows, doors, gates and other property. In excess of 188 glass windows were damaged and needed to be replaced. In addition, 4 sets of gates, wall and roof panels, an exercise yard and sky lights were damaged.
At one point the appellant drove a buggy through the glass double doors of a locked gymnasium. Once inside, the offenders forced open and ransacked an office and storeroom area. Thirty one windows were smashed, as were six display cabinet glass panels. Damage was caused to internal doors, office furniture and equipment.
The appellant and other offenders also went to an area called the Recovery Room. That was a locked location which detainees had no authority to enter at any time. A co-offender smashed a glass door panel and reached in to unlock the door. Several co-offenders entered the Recovery Room while the appellant and others waited outside. The Recovery Room was ransacked: a television was smashed and locked cupboards were damaged. Items including 'tactical jackets' were taken and used by the offenders during the riot. The appellant received a tactical jacket which he put on.
The appellant and other offenders got onto the roof of a kitchen. A co-offender climbed down and smashed a window to gain entry to the kitchen. The co-offender passed trays of food and drinks to the appellant, who distributed them to the group.
The appellant participated in a video recorded interview with police, and he admitted taking part in the riot He told police that he did so because he was angry and did not want to be in the Harding Unit. He said that '[e]very window we walked past we tried smashing', and admitted to being part of the group causing damage to the Detention Centre during the riot.
The riot had what the sentencing judge described as a 'terrible effect' on the 130 detainees who were not involved in the riot.[2] They were locked down in their cells when fires were lit, not knowing what would happen next. After the riot, detainees (including those who were not involved in the riot) were subjected to increased time in lockdown, significantly reduced social visits and telephone calls. There was also a suspension of education, a reduction in programmes directed to rehabilitation and a restriction on medical visits.[3]
[2] Sentencing ts 23/7/18, page 35.
[3] Sentencing ts 23/7/18, pages 35 - 36.
The riot also led to staff at the Detention Centre, some of whom had not returned to work, being stressed and distressed. The total financial cost associated with staffing, repairs and security upgrades was estimated at $3.5 million, of which about $500,000 was attributable to property damaged in the riot on 5 May 2017.[4]
[4] Sentencing ts 23/7/18, pages 34 - 35.
The charges for which the appellant was sentenced related to the following conduct:
(1)Charge 705/17 (criminal damage) concerned the windows which were smashed.
(2)Charge 712/17 (being armed in a way that may cause fear) related to the appellant picking up the plastic chair, and possession of various stolen items from Education Unit 1.
(3)Charge 701/17 (aggravated burglary) related to the appellant and others breaking into the workshops and storage sheds of Education Unit 1 and stealing equipment.
(4)Charge 710/17 (stealing, for which no penalty was imposed) related to the stealing of equipment from the workshops and storage sheds of Education Unit 1.
(5) Charge 713/17 (trespass) related to the appellant's entry onto the exercise yard of the Harding Unit to release RMJ.
(6)Charge 706/17 related to the damage caused to the exercise yard by the angle grinder, when releasing RMJ.
(7)Charge 702/17 (aggravated burglary) related to the appellant and others breaking into the gymnasium and stealing items.
(8)Charge 708/17 (criminal damage) related to damage caused to the gymnasium (including its office and storeroom).
(9)Charge 703/17 (aggravated burglary) concerned the co-offenders breaking into the Recovery Room and stealing items.
(10) Charge 709/17 (criminal damage) related to damage to property in the Recovery Room.
(11)Charge 704/17 (aggravated burglary) related to the co-offender breaking into the kitchen and stealing food.
(12)Charge 711/17 (stealing) related to the food and drinks from the kitchen which the appellant stole after being handed them by the co-offender.
Personal circumstances
The appellant was 17 years and 9 months' old at the time of offending and was 18 years' old at the time of sentence. He identifies as a young Maori man. The appellant's parents separated when he was young and his mother later started a relationship with a man who the appellant did not get along with. The appellant ended up living with his father, who had issues with anger management and substance abuse. The appellant also had difficulties with his father's new partner, and returned to stay with his mother and her partner who were living and working in Kalgoorlie.[5]
[5] Sentencing ts 23/7/18, page 38.
As a result of the appellant's movements, he attended a large number of different schools which made things difficult for his education. The appellant had anger management issues which led to him being expelled from school. He started using cannabis when he was about 11 years old, and had used alcohol.[6]
[6] Sentencing ts 23/7/18, pages 38 - 39.
On 20 February 2015, the appellant was sentenced to a total effective sentence of 2 years 6 months' detention in respect of offences of armed robbery, aggravated burglary and deprivation of liberty. After release for a short period, the appellant re-offended by stealing a motor vehicle, for which he was sentenced to 5 months' detention on 14 July 2016.
On 9 June 2017, the appellant was sentenced to a total effective sentence of 12 months' detention in respect of a series of offences committed in the Detention Centre:[7]
(1)Causing significant damage to his cell on 16 June 2016 and 25 July 2016 (2 x criminal damage).
(2)Engaging in riotous behaviour with three other detainees on 1 September 2016, when approximately $120,000 worth of damage was done to an accommodation wing (criminal damage).
(3)Assaulting two custody officers on 11 September 2016 with a chair and concrete from a kerb structure, during which one officer sustained a broken elbow (3 x assault public officer and 1 x being armed in a way that may cause fear).
(4)Engaging in riotous behaviour with a number of other detainees on 2 October 2016. The participants armed themselves with broomsticks and other makeshift weapons. They collected rocks which were used to pelt custody officers. Windows and glass doors in an education block were damaged. The participants climbed onto the roof where they removed air conditioning, roof sheets and chimney flues. They threw projectiles at an administration building, smashing two windows. Two officers were struck by a broomstick thrown by a participant other than the appellant (2 x assault pubic officer, 2 x criminal damage).
[7] Sentencing ts 9/6/17, pages 3 - 8.
The appellant had been in Harding Unit, which was an intensive supervision unit, for about 72% of his time in custody between 16 May 2016 and 4 May 2017. He had been relocated into another unit on 3 May 2017, but was transferred back to the Harding Unit on 4 May 2017. On that day there had been a riot at the Detention Centre in which the appellant was not involved. He had been permanently housed in an intensive support unit since committing the offences which are the subject of the current appeal on 5 May 2017.[8]
[8] Detention Management Report, pages 3 - 5.
The appellant had completed sentences of detention imposed prior to his sentencing for the current offences. Between completing those earlier sentences and the imposition of the sentences under appeal, the appellant had spent about 40 days on remand at the Hakea Prison Complex.[9]
[9] Sentencing ts 23/7/18, page 40.
Sentencing judge's approach
The sentencing judge said that the appellant had pleaded guilty but not at the first reasonable opportunity. However, her Honour said that she would give the appellant 'full credit' for entering the pleas and admitting what he had done. The sentencing judge noted that the appellant was not charged until January 2018, nearly 8 months after the offences were committed. Her Honour indicated that the reasons for the delay were not clear, and accepted that this was a long time for a young person to be 'waiting to hear what the result is'.[10] There is no complaint on appeal about the manner in which the sentencing judge dealt with the pleas of guilty.
[10] Sentencing ts 23/7/18, page 33.
The sentencing judge referred to the maximum penalties for the offences with which the appellant was charged. Her Honour misstated the maximum penalty for the criminal damage offences as 14 years rather than 10 years' imprisonment.[11] It was common ground on the appeal that, in circumstances where no cumulative sentence was imposed for the criminal damage offences, this was an immaterial error which was not the subject of any ground of appeal.[12]
[11] Sentencing ts 23/7/18, page 34.
[12] See Respondent's Submissions, par 15 - 20; appeal ts 5.
The sentencing judge referred to the circumstances of the offending, and the appellant's personal circumstances, which are summarised above.
The sentencing judge accepted that the appellant had spent 'a very long time having a bigger lockdown than other people', and that this had been very hard on the appellant and his family.[13] Her Honour accepted that conditions were very difficult for the appellant on 5 May 2017.[14]
[13] Sentencing ts 23/7/18, page 33.
[14] Sentencing ts 23/7/18, page 39 - 40.
The sentencing judge referred to the appellant's age at the time of offending and sentence as a factor she was required to consider, particularly when comparing the appellant's position to that of two co‑offenders - RMJ and RKR - who were about a year younger than the appellant.[15] RMJ had been sentenced by another judge to a total effective sentence of 9 months' detention. RKR was sentenced to a total effective sentence of 6 months' detention by the sentencing judge immediately after the appellant was sentenced.
[15] Sentencing ts 23/7/18, pages 32 - 33.
The sentencing judge referred to the parity principle. She explained that the appellant was to receive a longer sentence because the other offenders were younger and did not have the same number of offences against the good order of the Detention Centre as the appellant.[16] In sentencing RKR, the sentencing judge indicated that RKR's sentence would be 3 months less that RMJ's sentence because of additional time RKR had spent in detention after completion of his previous sentence and his steps to rehabilitation since the offences.[17]
[16] Sentencing ts 23/7/18, page 40.
[17] Sentencing ts 23/7/18, page 44.
The sentencing judge imposed the sentences referred to at [2] above on the appellant. The appellant was made eligible for parole and the sentences backdated to take account of time spent on remand at Hakea.[18]
[18] Sentencing ts 23/7/18, pages 40 - 41.
Grounds of appeal
The appellant appeals against his sentences on two grounds.
Ground 1, as amended at the hearing of the appeal, contends that the total effective sentence of 14 months' immediate imprisonment infringed the first limb of the totality principle.
Ground 2 contends that the sentences infringed the parity principle when compared to the sentences imposed on RMJ and RKR.
The application for leave to appeal was referred to the hearing of the appeal.
Sentencing young offenders: general principles
Under s 4 of the Young Offenders Act 1994 (WA):
If a person commits or allegedly commits an offence before reaching the age of 18 years, this Act applies to the person as a young person for purposes connected with that offence or any order that was made in dealing with the person for that offence.
Section 50B of the Young Offenders Act provides for the Sentencing Act and Sentence Administration Act 2003 (WA) to apply to a sentence imposed on a young person who is 18 years or older at the time of sentence. However, s 50B(5) expressly provides that s 46 of the Young Offenders Act applies to the court dealing with the offender. Where a sentence of imprisonment is imposed on a young person who has reached 18 years of age at the time of sentence, the sentence is to be served in a prison.[19]
[19] Section 118A(2) of the Young Offenders Act.
The appellant was therefore a 'young person' for the purposes of the Young Offenders Act when being dealt with for the current offences, notwithstanding that he had turned 18 by the date of sentence.[20] The general principles of juvenile justice set out in s 7 of that Act, and the general principles and considerations identified in s 46 of the Act, remained applicable. One of the matters which the sentencing court is to consider is provided for in the following terms by s 46(4) of the Young Offenders Act:
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.
[20] Section 3 of the Young Offenders Act (para (b) of the definition of 'young person').
In DC v The State of Western Australia,[21] Mazza JA, with whom Buss and Newnes JJA agreed, identified the following non-exhaustive list of propositions relating to the sentencing of young offenders:
1.The ultimate aim in sentencing a young offender is the protection of the community by the imposition of a sentence proportionate to the gravity of the offence, having regard to the circumstances of its commission and the circumstances personal to the offender.
2.Youth is normally a powerful mitigating factor and the rehabilitation of the young offender is generally a dominant sentencing consideration.
3.A young offender must not be treated more severely than an adult for the same offence.
4.Deterrence, both personal and general, punishment, retribution and public protection are accommodated in the YOA and are relevant to the sentencing of young offenders, although their role will generally be tempered. However, when in a particular case the rehabilitation of an offender appears unlikely, the offending is serious and the character and personal circumstances of the offender justify it, these factors may become significant.
5.Young offenders, even those with good antecedents, may, having regard to the circumstances of the case, be sentenced to detention or imprisonment.
6.The age and maturity of a young offender are relevant factors. Thus, a very young offender who is immature may be dealt with differently to an older child who, while still young, has a greater awareness and responsibility. (citations omitted)
[21] DC v The State of Western Australia [2014] WASCA 121 [50].
Ground 1: totality principle
As noted above, this proposed ground of appeal alleges an infringement of the first limb of the totality principle of sentencing. Principles governing sentence appeals on that ground are well established. The first limb requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[22]
[22] Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [26].
There is no merit in this ground. The sentences imposed were a small proportion of the applicable maximum penalties, and it is not alleged that any of the individual sentences were manifestly excessive. The degree of accumulation was limited to making the 2 month sentence for the trespass offence cumulative upon the head sentence of 12 months. All other sentences were to be served concurrently.
The fact that the offences were committed in a custodial setting was a very significant aggravating factor. The riot placed other detainees and staff at the Detention Centre at risk of harm, and would have been a traumatic experience for them. In addition to the significant costs which directly resulted from the offences, the conduct of the appellant and his co-offenders disrupted the proper operation of the Detention Centre for a significant period after the riot concluded. The adverse impacts on the well-being of staff and other detainees who did not participate in the riots were serious and ongoing. The need to protect detainees who are confined in the Detention Centre involuntarily, and staff who must work there, made general deterrence an important sentencing consideration. The courts' approach to sentencing for offences of this kind should send a clear signal that the ordinary response to such conduct will be a significant cumulative custodial sentence which is required to be served.
The appellant's past history of serious offending in a custodial setting elevated the importance of giving weight to personal deterrence as a sentencing consideration. The appellant had not been deterred by sentences previously received for serious offences against persons and property committed while he was at the Detention Centre. It was imperative that the sentences imposed for these offences bring home to the appellant the seriousness of his offending and the consequences of continuing with that behaviour.
The sentencing judge treated as mitigatory the fact that, due to security concerns, the appellant is likely to be detained in conditions which are more arduous than those applicable to the general prison population. In Milenkovski v The State of Western Australia,[23] Buss JA referred to the principles applicable where a person is likely to be subject to more arduous confinement 'other than for reasons attributable to breaches of prison rules or disciplinary requirements'. Mazza JA agreed with that distillation of principle.[24] All members of the court recognised that the reasons why an offender is subject to harsher conditions affects the mitigating effect of those conditions.[25] In the appellant's case any mitigating effect must be at least substantially reduced by the fact that the more arduous conditions are a product of his past offending in a custodial setting. They reflect the consequent concerns about the risks which the appellant poses to the safety of staff and prisoners, to public property and to the proper operation of the prison system.
[23] Milenkovski v The State of Western Australia [2014] WASCA 48 [151] - [157].
[24] Milenkovski [211].
[25] McLure P at [15] - [16]; Buss JA at [154] - [155]; Mazza JA at [211] - [212].
Neither party referred the court to any comparable cases involving offending of the relevant kind by a young person in a custodial setting.
Having regard to the above considerations, and taking account of the special considerations governing the sentencing of young persons, it is not reasonably arguable that the appellant's total effective sentence infringed the first limb of the totality principle. Even taking account of those special considerations, the total effective sentence imposed on the appellant was one which was well open to the sentencing judge to impose in the exercise of her sentencing discretion.
Ground 2: parity principle
The principles to be applied in determining whether this court should interfere with a sentence on parity grounds were summarised by Mazza JA in Barry v The State of Western Australia:[26]
The parity principle is based upon the norm of equality before the law which requires, so far as the law permits, that like cases be treated alike and that there be different outcomes where there are relevant differences.
Whether the parity principle has been infringed does not depend upon a finding that the sentence in question is manifestly excessive. It depends upon whether, objectively speaking, the disparity (or lack of it) gives rise to a justifiable sense of grievance.
What is required is a comparison of the sentence imposed on each offender and an evaluation of their involvement in the commission of the offence and their antecedents. (citations omitted)
[26] Barry v The State of Western Australia [2012] WASCA 175 [55] - [57].
The principles to be applied in determining whether this court should interfere with a sentence on parity grounds are also set out in Ngo v The Queen.[27] As noted in that case, the question is essentially whether a marked disparity or lack thereof gives rise to an objectively justifiable sense of grievance.
[27] Ngo v The Queen [2017] WASCA 3 [36] - [39].
Ground 2 also has no reasonable prospects of success. The differences between the sentences imposed by the sentencing judge were justified by the matters to which she referred. In particular, the appellant's prior record of offending in a custodial setting, which distinguished his position from that of his sentenced co‑offenders, elevated the significance of personal deterrence as a sentencing consideration. It is not arguable that the difference between the sentences gives rise to an objectively justifiable sense of grievance on the part of the appellant.
Conclusion
It was for the above reasons that we concluded that neither ground of appeal has any reasonable prospect of succeeding, and made orders refusing leave to appeal and dismissing the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
ASSOCIATE TO THE HONOURABLE JUSTICE MITCHELL29 OCTOBER 2018
4
1