P (a child) v Thompson - [2011] WASC 120

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: P (a child) -v- THOMPSON [2011] WASC 120

CORAM: HALL J

HEARD: 15 APRIL 2011

DELIVERED : 15 APRIL 2011

FILE NO/S: SJA 1015 of 2011

BETWEEN: P (a child)
Appellant
AND
CHRISTOPHER THOMPSON
First Respondent
ANDREW COEN
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T G SCHWASS
File No  :MH 536 of 2010, MH 537 of 2010, MH 575 of 2010

Catchwords:

Criminal law - Sentencing - Child offender - Whether sentences of detention manifestly excessive - Principles to be applied

Legislation:

Criminal Code (WA), s 371A, s 444(1)(b)
Road Traffic Act 1974 (WA), s 49(1)(a)
Young Offenders Act 1994 (WA), s 7(h), s 46, s 69, s 118, s 120(1)

Result:

Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant:     Mr P B Cassidy
First Respondent           :     Ms T Weston
Second Respondent       :     Ms T Weston

Solicitors:

Appellant:     Thames Legal
First Respondent           :     Director of Public Prosecutions (WA)
Second Respondent       :     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Gable v Nardini [2010] WASC 321
Jones v Sadler (No 2) [2010] WASC 53
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
WO (a child) v State of Western Australia [2005] WASCA 94; (2005) 153 A Crim R 352

HALL J: On 31 January 2011 the appellant appeared in the Children's Court in Mandurah and was sentenced to terms of detention on three charges to which he had earlier pleaded guilty. The appellant was at that time and remains 16 years of age. He was 15 at the time the offences were committed. For that reason this judgment will refer to him as P. He now seeks leave to appeal against the sentences imposed upon him.
The three charges were stealing a motor vehicle contrary to s 371A of the Criminal Code (WA); driving the same vehicle without a licence, contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA), and wilful damage contrary to s 444(1)(b) of the Criminal Code.
The facts relating to those charges were as follows. At about 1.00 am on 17 July 2010 P returned to his mother's house where he was then living. He had drunk some alcohol at a party. He found his mother's car keys and then drove the car back to the party and picked up two friends there. Shortly after, he attempted a U‑turn and collided with a kerb, causing damage to the car. After changing a wheel, he drove the car back to his mother's house at about 3.00 am. He took the car without permission and drove it without ever having held a driver's licence.
The damage offence was committed two months earlier on 21 May 2010. On the morning of that day P was travelling on a public bus and used a sharp object to scratch a tag onto a rear window.
The appellant first appeared in the Mandurah Children's Court on 15 September 2010. Proceedings were adjourned to allow him to participate in a court conferencing process. A report from a juvenile justice team was prepared dated 15 December 2010.
That report stated that at an initial conference P had accepted responsibility for his actions and participated satisfactorily in the process. An action plan was developed which required attendance at a programme at Royal Perth Hospital, to write an essay on the programme, to write an apology letter and to attend an assessment with a counselling service. Unfortunately, the actions set out in the plan were not undertaken. The report said that this was due to a lack of motivation on P's part. The matter was then returned to the court for further consideration with an indication that the juvenile justice team would continue to assist if P was afforded a further opportunity.
On 22 December P again appeared in the Children's Court at Mandurah. The court was provided with the report that I have referred to and the matter was then remanded to 14 March to provide P with another opportunity to participate in court conferencing programmes. However, the matter was listed early by the juvenile justice team due to P's continuing non‑compliance.
On 31 January 2011 P appeared in the Mandurah Children's Court. At that time he was unrepresented, though he had been represented on previous occasions. The proceedings were very brief. The magistrate confirmed that the action plan had not been carried out. P was asked why and gave no explanation. The magistrate was then told there was no previous record and proceeded to sentence the appellant to one month's detention on each charge, to be served cumulatively.
An appeal notice was filed on 15 February this year and an application for bail pending hearing of the appeal was made. I granted bail on 18 February and P spent 18 days in detention before being released on bail.
The grounds of appeal as amended at this hearing are as follows:
(1)That the learned Magistrate erred in law by imposing a sentence for the offence of no authority to drive (never held) which exceeded the maximum penalty prescribed in the legislation;
(2)The sentence imposed by the learned Magistrate for the offences of steal motor vehicle and criminal damage were manifestly excessive, having regard to the circumstances of the case, including those referable to the appellant personally; and
(3)The learned magistrate erred in law by failing to advise the appellant, who was unrepresented, of the ability to obtain legal advice and representation.
As to ground 1, pursuant to s 49(1)(a) of the Road Traffic Act, the maximum penalty for a first offence, which this was, is a fine of $300. No sentence of imprisonment is provided for such an offence. Accordingly, it was not open to impose a sentence of detention: s 118 Young Offenders Act 1994 (WA). Thus the sentence of one month's detention imposed for that offence was in error and ground 1 must succeed.
As to ground 2, an appeal Court is not entitled to intervene merely because it would have exercised the sentencing discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. However, an appeal court can intervene where an error of fact or law is identified. Such an error may be expressed or may be implied because the sentence is manifestly inadequate or excessive: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
A sentence of imprisonment is a sentence of last resort. The same is true of detention: s 120(1) Young Offenders Act. Rehabilitation is a particularly important consideration in respect of children: s 7(h) and s 46 Young Offenders Act.
A desire to set boundaries may cause a magistrate to lose sight of this consideration and the underlying principle that a custodial disposition must be justified by the moral culpability of the offender and the seriousness of the offences: WO (a child) v State of Western Australia [2005] WASCA 94; (2005) 153 A Crim R 352.
In my view there were other available sentencing options in this case. Doubtless, the magistrate was concerned that P was not showing appropriate respect for the efforts that had been made to offer him opportunities to reform. That, however, does not aggravate the offending or make a penalty appropriate that is more serious than that offending would otherwise call for.
When looked at in context, this offending was less serious than the charges, which on their face, might suggest. The stealing of the car involved no forcible entry and the car was returned after a short time, albeit damaged. The driving offence was potentially dangerous, but could only result in a fine in any event. The graffiti offence was not one that would normally call for a sentence of detention. There was no suggestion that it was part of a course of conduct. Indeed, the appellant had no record.
Sentences of imprisonment may be appropriate in respect of some graffiti damage cases, as to which I refer to Jones v Sadler (No 2) [2010] WASC 53, but this was not such a case.
It was also important to take into account the mitigating factors, including P's age at the time of the offending, 15, his early pleas of guilty and his previous good character. In my view the sentences imposed on the stealing and damage charges were manifestly excessive and the magistrate erred by imposing sentences of detention. Accordingly, ground 2 succeeds.
As to ground 3, it is clear from the transcript of 31 January that the magistrate had formed the view that detention was appropriate. It is no small thing for any person to lose their liberty. This is no less true of a child. The appellant, however, was unrepresented on this occasion and was not given an opportunity to obtain representation before that sentence was imposed. He should have been given that opportunity: Gable v Nardini [2010] WASC 321. Accordingly, ground 3 also succeeds. I should note that the respondent has very properly conceded each of the grounds of appeal in this case.
In re‑sentencing I take into account the 18 days in detention that was spent by P before being released on bail. I have also considered affidavits sworn by P and by Ms Melanie Nissen, in whose home P now resides. These affidavits reveal that P has taken constructive steps towards rehabilitation.
He has been offered an apprenticeship and will shortly start a drug rehabilitation course. Ms Nissen is the mother of a friend of P. He lives at her house with her and her family. It is clear that this is a supportive and stable environment which has had a very positive impact on P.
Ms Nissen recounts the steps that she has taken to assist P in addressing his past problems and in leading a constructive life. It is clear that the most positive outcome both for P and the community is that he should have an opportunity to return to live at Ms Nissen's home.
In my view, the appropriate sentences for these offences at first instance would have been fines. However, I take into account the 18 days that P has spent in detention and also his limited ability to pay fines. In those circumstances I have come to the conclusion that the appropriate disposition is a recognisance to be of good behaviour under s 69 of the Young Offenders Act.
I will set aside the orders for detention that were made by the magistrate and re‑sentence P for the offences by imposing no penalty, but requiring him to enter into a recognisance to be of good behaviour. That will be a recognisance to be of good behaviour for six months in the sum of $500.