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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading P (a child) v Thompson

Details

AGLC: P (a child) v Thompson [2011] WASC 120
Case: [2011] WASC 120
Decision Date: 15 APRIL 2011

CaseChat Overview and Summary

In the case of P (a child) v Thompson, the appellant, a child, challenged the severity of the sentences of detention imposed upon him by the sentencing judge. The appellant was convicted of serious criminal offences and was sentenced to a period of detention at the discretion of the court. The appeal was heard by the Court of Appeal, which had to determine whether the sentences imposed were manifestly excessive in light of the principles governing the sentencing of child offenders.

The court had to consider the appropriate weight to be given to the principles of sentencing child offenders, including the need for proportionality, rehabilitation, and deterrence. The court was required to assess whether the sentences imposed were manifestly excessive, taking into account the appellant's age, the nature of the offences, and the principles of sentencing applicable to child offenders. The court also had to consider the appellant's personal circumstances and any mitigating factors that might have been relevant to the sentencing process.

The Court of Appeal found that the sentencing judge had given appropriate weight to the principles of sentencing child offenders and had considered the appellant's age and personal circumstances. The court held that the sentences imposed were not manifestly excessive and that the sentencing judge had exercised his discretion in a manner consistent with the relevant principles. The Court of Appeal dismissed the appeal, upholding the sentences imposed by the sentencing judge.

No further orders were made by the Court of Appeal. The sentences of detention imposed upon the appellant remained in place.

Orders