R v DP (a child)
[2003] WASCA 92
•6 MAY 2003
R -v- "DP" (A CHILD) [2003] WASCA 92
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 92 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:190/2002 | 6 MARCH 2003 | |
| Coram: | MALCOLM CJ MURRAY J PARKER J | 6/05/03 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Total sentence increased from 2 years and 6 months to 6 years and 9 months | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN "DP" (A CHILD) |
Catchwords: | Criminal law Sentencing Crown appeal against sentence Respondent aged 16 at the time of commission of the offences Various offences including aggravated burglary, aggravated sexual penetration, unlawful detention Totality principle Total sentence of 2 years and 6 months' imprisonment manifestly inadequate having regard to the total chapter of criminality |
Legislation: | Children's Court of Western Austsralia Act 1998 (WA), s 43(1) Criminal Code (WA), s 317, s 324, s 326, s 333, s 401(1)(a) Young Offenders Act 1994 (WA), s 6, s 7, s 124 |
Case References: | "AM" (A Child) & Anor v The Queen, unreported; CCA SCt of WA; Library No 960263; 15 May 1996 "B" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950482; 13 September 1995 Ainsworth v "D" (A Child) (1992) 7 WAR 102 Dinsdale v The Queen (2000) 202 CLR 321 Fyfe v The Queen, unreported; CCA SCt of WA; Library No 980142; 18 March 1998 Herbert v The Queen [2003] WASCA 61 Kalalo v The Queen, unreported; CCA SCt of WA; Library No 6215; 14 March 1986 Lowndes v The Queen (1999) 195 CLR 665 Noddy v The Queen [1980] WAR 132 Norris v "AT" (A Child) [2003] WASCA 54 R v "VC" (A Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999 R v Grein [1989] WAR 178 R v Peterson [1984] WAR 329 R v Tait (1979) 46 FLR 386 R v Walker, unreported; CCA SCt of WA; Library No 7326; 20 October 1988 Yorkshire v The Queen, unreported; CCA SCt of WA; Library No 7169; 2 May 1988 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- "DP" (A CHILD) [2003] WASCA 92 CORAM : MALCOLM CJ
- MURRAY J
PARKER J
- Appellant
AND
"DP" (A CHILD)
Respondent
Catchwords:
Criminal law - Sentencing - Crown appeal against sentence - Respondent aged 16 at the time of commission of the offences - Various offences including aggravated burglary, aggravated sexual penetration, unlawful detention - Totality principle - Total sentence of 2 years and 6 months' imprisonment manifestly inadequate having regard to the total chapter of criminality
Legislation:
Children's Court of Western Austsralia Act 1998 (WA), s 43(1)
Criminal Code (WA), s 317, s 324, s 326, s 333, s 401(1)(a)
Young Offenders Act 1994 (WA), s 6, s 7, s 124
(Page 2)
Result:
Appeal allowed
Total sentence increased from 2 years and 6 months to 6 years and 9 months
Category: A
Representation:
Counsel:
Appellant : Mr J Mactaggart
Respondent : Mr M R Hall
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Malcolm Hall
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
"B" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950482; 13 September 1995
Ainsworth v "D" (A Child) (1992) 7 WAR 102
Dinsdale v The Queen (2000) 202 CLR 321
Fyfe v The Queen, unreported; CCA SCt of WA; Library No 980142; 18 March 1998
Herbert v The Queen [2003] WASCA 61
Kalalo v The Queen, unreported; CCA SCt of WA; Library No 6215; 14 March 1986
Lowndes v The Queen (1999) 195 CLR 665
Noddy v The Queen [1980] WAR 132
Norris v "AT" (A Child) [2003] WASCA 54
R v "VC" (A Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999
R v Grein [1989] WAR 178
R v Peterson [1984] WAR 329
R v Tait (1979) 46 FLR 386
(Page 3)
R v Walker, unreported; CCA SCt of WA; Library No 7326; 20 October 1988
Yorkshire v The Queen, unreported; CCA SCt of WA; Library No 7169; 2 May 1988
Case(s) also cited:
Nil
(Page 4)
1 MALCOLM CJ: This is an appeal against sentence by the Crown under s 43(1) of the Children's Court of Western Australia Act 1998 (WA) ("the Children's Court Act"). On various dates in 2002, the respondent was convicted in the Children's Court on his plea of guilty to a total of 18 offences in respect of which he was sentenced by the learned President of the Court to various periods of detention totalling 10 years and 9 months. A number of the sentences were directed to be served concurrently with the result that the total period of detention was reduced to 2 years and 6 months. An order was made that he be eligible for supervised release into the community after he had served 15 months in detention.
2 The grounds of appeal originally relied upon by the Crown were as follows:
"1. The learned sentencing Judge erred in imposing sentences in respect of Charge Nos. 02/3047 to 02/3050, inclusive, that were manifestly inadequate in all of the circumstances.
…
2. The learned sentencing Judge erred in imposing sentences in respect of Charge Nos. 02/1764 to 02/1768, inclusive, that were manifestly inadequate in all of the circumstances.
…
3. The learned sentencing Judge erred in imposing an aggregate sentence that was manifestly inadequate in all of the circumstances.
4. The learned sentencing Judge erred in placing too much weight on matters personal to the Respondent."
3 The order sought by the Crown on the appeal was that certain sentences imposed in the Children's Court be set aside and in substitution this Court should therefore "pass such sentences of imprisonment as the Court thinks fit." At the hearing of the appeal, the Crown sought and obtained leave to add a further ground of appeal, as follows:
"5. The learned sentencing Judge erred in ordering that the sentences imposed in respect of the various charge
(Page 5)
- numbers be served concurrently with the sentences in respect of charge numbers 02/1764 to 02/1768 inclusive.
(a) the overall sentences imposed failed to reflect the seriousness of the offences as particularised in grounds of appeal 1 and 2.
(b) the learned sentencing Judge erred in placing too much weight on matters personal to the respondent.
(c) the respective groups of offences were separate in time and place, and there was therefore no basis for complete concurrency."
4 It follows that the Crown appeal is not directed at all of the sentences which were imposed. There is no issue on the appeal regarding the sentences imposed in respect of the following charges:
1. Charges No KA02/162-164
The respondent pleaded guilty to three counts of aggravated burglary (in company) contrary to s 401 of the Criminal Code (WA) ("the Criminal Code"). He was sentenced on 3 May 2002 to 3 months' detention on each charge to be served concurrently with each other.
2. Charge No 02/2011
The respondent pleaded guilty to a charge of attempted aggravated burglary with an intent to commit an offence in a dwelling, in circumstances of aggravation, namely, that the respondent knew there was someone in the place contrary to s 401(1)(a) of the Criminal Code. This offence, which was described by the learned Judge as having "the objective hallmarks of a peeping Tom offence", attracted a concurrent sentence of detention for 9 months.
3. Charge No CCWB138/01
The respondent pleaded guilty to a charge of aggravated burglary with an intent to commit an offence in a dwelling, in circumstances of aggravation, namely, that the respondent was in company contrary to s 401(1)(a) of the Criminal Code. He was sentenced on 3 May 2002 to 3 months' detention concurrent.
(Page 6)
- 4. Charge No CCWB101/139
The respondent pleaded guilty to a charge of aggravated burglary, namely, that he entered the place of the Papulankutja Community Inc trading as the Blackstone Community Store without the consent of the Community and committed an offence therein, namely, stealing in circumstances of aggravation, namely, being in company contrary to s 401(1)(a)(ii) of the Criminal Code. He was sentenced on 3 May 2002 to 3 months' detention concurrent.
5. Charge No KA02/20
The respondent pleaded guilty to a charge of aggravated burglary by attempting to enter the building of the Kalgoorlie Country Club with intent to commit an offence therein in circumstances of aggravation, namely, that he was in company with others contrary to s 401(1)(a) of the Criminal Code. He was sentenced on 3 May 2002 to 3 months' detention concurrent.
6. Charges Nos KA02/057-059
The respondent pleaded guilty to three charges of aggravated burglary in respect of the premises of the Kalgoorlie/Boulder Basketball Association committed between 1 and 2 January and on 19 January 2002 respectively, in respect of which he was sentenced on 3 May 2002 to 3 months' detention concurrent on each charge.
5 As this is a Crown appeal against sentence, it is necessary to take into account the principles applicable to such appeals as stated by the High Court in Dinsdale v The Queen (2000) 202 CLR 321 per Gleeson CJ and Hayne J at [3] – [4]; Gaudron and Gummow JJ at [21]; and Kirby J at [57] – [62]; see also Lowndes v The Queen (1999) 195 CLR 665; R v Grein [1989] WAR 178 per Malcolm CJ at 179 – 180; R v Peterson [1984] WAR 329 at 330 per Burt CJ, applying the principles stated in R v Tait (1979) 46 FLR 386 at 387 per Brennan, Deane and Gallop JJ.
6 It is not enough that the appellate court considers the sentence or sentences insufficient. It is necessary to show that the sentencing Judge was in error in acting on a wrong principle, or in misunderstanding, or in wrongly assessing some salient feature of the evidence, or because the sentence is so inadequate as to manifest error. At the same time, the
(Page 7)
- appellate court must take into account that the offender is in jeopardy for a second time.
Charge Nos 02/3047 to 02/3050
7 The Crown contended in ground 1 that the sentences imposed by the learned sentencing Judge in respect of Charge Nos 02/3047 to 02/3050, inclusive, were manifestly inadequate in all of the circumstances. The law relating to the sentencing of young offenders is now set out in the Young Offenders Act 1994 (WA) (the "YO Act"). The legislation is applicable in respect of offenders under the age of 18 years at the time of commission of the relevant offence. Section 6 sets out a number of objectives of the legislation, including the embodiment of "the general principles of juvenile justice", that are to be observed in performing functions under the YO Act. These principles are found in s 7 of the YO Act and include the following, which were regarded by Rowland, Walsh and Owen JJ as particularly relevant in "B" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950482; 13 September 1995:
"(b) a young person who commits an offence is to be dealt with, either formally or informally, in a way that encourages the young person to accept responsibility for his or her conduct;
...
(d) the community must be protected from illegal behaviour;
...
(f) responsible adults should be encouraged to fulfil their responsibility for the care and supervision of young persons, and supported in their efforts to do so;
...
(h) detaining a young person in custody for an offence whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for a short a time as necessary;
(j) punishment of a young person for an offence should be designed so as to give the offender an opportunity to
(Page 8)
- develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;
- …
(m) a young person who commits an offence is to be dealt with in a way that:
(i) strengthens the family and family group of the young person;
(ii) fosters the ability of families and family groups to develop their own means of dealing with offending by their young persons; and
(iii) recognises the right of the young person to belong to a family."
"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. Youth of itself is always regarded as a powerful mitigating factor. The form of disposition will, whenever possible in the circumstances of the case, be less punitive and severe than that imposed upon an adult offender. 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,
(Page 9)
- and therefore for the protection of the community from their lawless behaviour, where that is seen as a real possibility. The relevant principles have long been established by the courts. They predate the enactment of the Young Offenders' Act. The principles have been recently restated with citation of relevant authority in "BAC" (A Child) v R, unreported, CCA SCt of WA; Library No 950510; 25 September 1995and R v "M" (A Child), unreported; CCA SCt of WA; Library No 950565; 19 October 1995."
9 Their Honours went on to demonstrate how the YO Act had restated the principles in statutory form in ss 7, 46, 120 and 125 of the Act. Section 120 of the Act provides that:
"The court cannot impose a custodial sentence unless it is satisfied that there is no other appropriate way for it to dispose of the matter."
10 It was common ground that this was such a case. In the context of young persons who repeatedly commit serious offences, s 125 of the Act provides that:
"The court, in disposing of the matter, is to give primary consideration to the protection of the community ahead of all the other principles and whether referred to in s 46."
11 In my opinion, the number and seriousness of the offences involved in the present case set against the respondent's background of offending, places this case within the category referred to in s 125.
12 The respondent was born on 9 August 1986 and was aged 16 at the time the offences were committed and when he was sentenced.
13 So far as the sentences imposed in respect of Charge Nos 02/3047 to 02/3050 inclusive are concerned, there were four charges joined in one complaint. These were as follows:
Charge No CC02/3047: on the 28th day of March 2002 at Piccadilly [the respondent] unlawfully detained [the complainant] contrary to s 333 of the Criminal Code.
Charge No 02/3048 was that on 28 March 2002 at Piccadilly [the respondent] sexually penetrated [the complainant] without
(Page 10)
- her consent, in circumstances of aggravation, namely, that he did her bodily harm contrary to s 326 of the Criminal Code.
Charge No 02/3049 was that on 28 March 2002 at Piccadilly [the respondent] unlawfully and indecently assaulted [the complainant] without her consent, in circumstances of aggravation, namely, did her bodily harm contrary to s 324 of the Criminal Code.
Charge No 02/3050 was that on 28 March 2002 at Piccadilly [the respondent] unlawfully and indecently assaulted [the complainant] without her consent, in circumstances of aggravation, namely, did her bodily harm contrary to s 324 of the Criminal Code.
14 These charges were put to the respondent on 12 September 2002. The respondent pleaded guilty to all of the offences. All of the offences occurred on 28 March 2002.
15 The incident was clearly one which was terrifying for the victim. The complainant had got off the train in Kalgoorlie and was walking next to Edwards Park in Piccadilly. She heard someone behind her and became frightened and started to run. The respondent ran after her and called out "stop". She did not and the respondent then grabbed her and she fell to the ground. She suffered some cuts on her hands and knees and elbows and there was then a struggle.
16 The applicant tried to take off the complainant's jeans and her underpants. He did not succeed and he told the complainant to get them off herself or he would hurt her. She did that and the respondent then penetrated her vagina with his penis. While he was having sex with the complainant, he kissed her on the breast and lips. He also tried to put his tongue into her mouth.
17 When interviewed, the respondent denied involvement in the offences. However, he was identified following a positive match of a DNA sample taken from him with a DNA sample taken from the complainant.
18 On 27 September 2002, the learned President sentenced the respondent to detention for 9 months in respect of Charge No 02/3047 (deprivation of liberty) to be served concurrently; detention for 2 years in respect of sexual penetration without consent to be served concurrently; detention for 2 years cumulative on the sentence imposed in respect of
(Page 11)
- Charge No 02/1764 (aggravated sexual penetration without consent); 6 months' detention in respect of Charge No 02/3049 (aggravated sexual assault) to be served concurrently; and a further 6 months' detention in respect of Charge No 02/3050 (aggravated sexual assault). Thus the total sentence to be served cumulatively with the sentence for the offence the subject of Charge No 02/1764 was 2 years.
Charge Nos 02/1764 – 02/1768
19 On 17 May 2002, the respondent was charged with five further offences in respect of which he pleaded guilty on 9 September 2002 and for which he was sentenced by the learned President on 27 September 2002. All of the offences were committed on 17 May 2002 at Balga and involved the same complainant, M.
20 Charge No 02/1764 was that on 17 May 2002 at Balga, the respondent unlawfully and indecently assaulted one M without her consent, in circumstances of aggravation, namely, that he was armed with an offensive weapon, namely, a knife sharpening steel contrary to s 324 of the Criminal Code. The respondent pleaded guilty to this charge on 9 September 2002. On 27 September 2002, he was sentenced to detention for 6 months backdated to commence on 17 May 2002. It was the sentence for Charge No 02/3047 which was ordered to be served cumulatively upon the sentence for this offence. It was the cumulation of these two sentences which produced the total sentence of 2 years and 6 months, the subject of the Crown's contention on the appeal that it was manifestly inadequate having regard to the number, nature and seriousness of the various offences.
21 Charge No 02/1765 was that on the same day at the same place, the respondent unlawfully detained M contrary to s 333 of the Criminal Code. The respondent pleaded guilty to this charge on the same date and was sentenced to detention for 9 months backdated to 17 May 2002 concurrent.
22 Charge No 02/1766 was that on the same day at the same place, the respondent unlawfully and indecently assaulted M without her consent, in circumstances of aggravation, namely, that he did her bodily harm contrary to s 324 of the Criminal Code. The respondent pleaded guilty to this charge and was sentenced to detention for 6 months.
23 Charge No 02/1767 was that on the same day at the same place, the respondent sexually penetrated M without her consent in circumstances of
(Page 12)
- aggravation, namely, that he did her bodily harm contrary to s 326 of the Criminal Code. The respondent pleaded guilty and was sentenced to 18 months' detention concurrent.
24 Charge No 02/1768 was that on the same day at the same place, the respondent unlawfully assaulted M and thereby did her bodily harm contrary to s 317 of the Criminal Code. The respondent pleaded guilty and was sentenced to 12 months' detention concurrent.
25 The learned President justified the making of a number of the sentences concurrent and only two of the sentences to be served cumulatively as follows:
"I must determine whether any of these sentences should be served cumulatively. In making this determination I have to take into account that this in effect will be [the respondent's] first lengthy sentence of detention. I have to take into account his age, all the principles of Juvenile Justice outlined in the Young Offenders Act, and the matters that I have already mentioned. It is important that a person with [the respondent's] background is not subjected to a sentence which will completely institutionalise him and which will have the consequence of failing to prevent him from reoffending when he is eventually released, because he will eventually be released.
In all of the circumstances I consider that there should be a total sentence of 3 years. Accordingly, all sentences will be served concurrently save for these; charges 3048 of 2002, which is the aggravated sexual penetration in Kalgoorlie which is 2 years, will be served cumulatively on the 6 months on charge 1764 of 2002, which is one of the aggravated indecent assaults committed in Perth."
26 This is how the total sentence of 2 years and 6 months was arrived at. The commencement date of the sentences was backdated to 17 May 2002 when the respondent was taken into custody in respect of these offences. Her Honour then proceeded to fix a minimum term, being one half of the total sentence imposed of 2 years and 6 months, namely 15 months, in accordance with s 121 of the Young Offenders Act. Of course, whether the respondent should be released on supervised release and, if so, when, is a matter for the relevant Supervised Release Board to determine.
(Page 13)
27 The facts as related to the Court on 12 September 2002 were that on the evening of 16 May 2002, the respondent was at his home in Balga with relatives. In the early hours of the morning of 17 May 2002, the respondent and two friends left the house to go for a walk. Near the corner of Selsfield Place and Selhurst Way in Balga, the respondent saw the complainant and her friend walking towards them. He called out to them and propositioned them for sex which they declined and kept walking. The respondent separated from his two friends and followed the complainant and her friend for about 30 metres.
28 He then grabbed the complainant in a bear hug from behind, forced her face down onto the ground and told her to lie still because he wanted sex. She struggled violently in an attempt to break free. As the offender held the complainant to the ground, the complainant's friend forced the respondent off the complainant which allowed her to escape. At this time, he was holding a 30-centimetre long knife sharpening steel.
29 The complainant and her friend ran south along Selsfield Place. Shortly after, the respondent began to pursue the two of them on foot. They ran to the end of that road, turned right into another road and then left into a further road. They reached a point on the southern side of the Reid Highway overpass, approximately 600 metres from the scene of the first assault when the respondent caught them on the western side verge of the road.
30 The respondent then grabbed the complainant in a bear hug again and pushed her face down into the sand. He lay on top of her while she struggled violently to get away. He then proceeded to punch her on the back of the head, face and back and positioned himself to the rear of the complainant. The complainant then stabbed the respondent with a small knife that she was carrying to protect herself. It struck him and caused a small puncture to his skin just around his left eye. The respondent then held the complainant with one hand while he rubbed her breast with the other. He pulled her tracksuit pants and underpants down from behind and placed his hand around the outside of her leg to a position where he could touch her vagina. He then pushed his fingers into her vagina.
31 She resisted violently throughout the incident and the complainant's friend arrived and again forced the respondent off the complainant. The complainant sought assistance from a passing bus and the police and an ambulance were called a short time later. The complainant was taken to the Joondalup Medical Campus where she was treated for a large bruise or haematoma to the back of the head, soft tissue injury to the left cheek,
(Page 14)
- bruising and swelling to her face. The respondent was spoken to by the police later that morning and denied any knowledge of the offence, stating that he had never left the house.
32 After taking the pleas of guilty on 12 September 2002, the learned President noted that the sexual offences on 17 May and the attempted burglary on the same date breached a Youth Conditional Order which had been imposed on the respondent by the learned President just 48 hours earlier on 15 May 2002 in respect of a number of other offences, including an offence of indecent assault.
33 On 12 September 2002, the learned Judge directed that a report be obtained from the Juvenile Justice Service and a psychological report should also be obtained to specifically address the issues related to the sexual offending. It was made clear to the respondent on 12 September 2002 that he would be sentenced to detention.
34 On 27 September 2002, the respondent appeared before the learned President again for the purpose of sentencing. There was then available to the Court an updated pre-sentence report dated 12 August 2002, which dealt with the circumstances of the various offences. It was noted that the respondent's grandfather had died on 10 May 2002. In the meantime, the respondent had been remanded in custody since the submission of a previous report. He was released subject to a Conditional Release Order on 16 May 2002, but was taken back into custody charged with additional offences on 17 May 2002. There were then concerns regarding his well-being. Initially, he had little contact with family members while in custody, but had an opportunity to speak to relatives shortly after his grandfather's death and at the subsequent funeral.
35 He attained the age of 16 on 9 August 2002. As a result, he became eligible for employment on the Community Development Employment Programme. Tentative arrangements were made for the respondent to reside with his aunt upon his release. The aunt lives in Kalgoorlie with her partner and her elderly father. The respondent has lived there from time to time, including one period which was more than a year. The aunt was willing to provide suitable accommodation for him.
36 The psychological assessment of the respondent was that he should attend counselling to specifically address a prior indecent assault offence with a focus on education regarding appropriate sexual contact. As at the date of the report, 12 August 2002, the respondent had spent 86 days in custody in relation to all of the charges then before the Court. He had
(Page 15)
- spent 73 days in custody in respect of the aggravated burglary. He was also subject to a 6 months' Conditional Release Order with supervision and attendance conditions, which was due to expire on 14 November 2002. The report also contained an Agenda for a Community Based Order with various conditions, including attendance for counselling and reporting, community work, etcetera.
37 The psychological report indicated that the respondent's development from a very young age had been marred by family violence, family breakdown, unsuccessful placements with significant relocations, unstable care, volatile substance misuse, and very limited social attachments. When he had displayed attachments with others, it had been with youths who had mirrored his own substance misuse and offending behaviour. The Department of Community Development had been involved with the respondent's family for most of his life, due to welfare concerns. Accompanying his turbulent background was a significant history of police and justice involvement.
38 The report indicated that the respondent's sexual offending appears to have occurred in the context of a disenfranchised existence, which held little promise of future positive prospects. Any conclusions about his sexual behaviour were qualified by the limited information that the respondent was able to provide. Factors that were evident included sexual drive, an expectation of compliance from the victim and a poor appreciation of the victim's circumstances. It was speculated that in relation to the offence in Kalgoorlie, at least, his aggressive actions may have been fuelled by troubled emotions from loneliness and perceived rejection by his family. It was suggested that this disturbed attachment with others in conjunction with exposure to family violence provided explanation for his disregard for the victim and use of violence. While it was said that substance abuse did not appear to have been a critical factor, his long-standing substance misuse may well have affected his cognitive ability and social development.
39 The offending behaviour was marked by his aggressive approach to a victim in a public place following some premeditation. It was suggested that in clinical terms it was significant that there may have been aspects of his earlier assault that reinforced his sexual aggression, encouraging a repeated assault. He did, however, despite initial reluctance, disclose his offences in interview and acknowledge his responsibility. He did recognise counselling as a means of addressing his offending behaviour.
(Page 16)
40 The report indicated a need for long-term counselling, the outcome of which was dependent upon his environment, significant attachments to appropriate adults and his responsiveness to the process. It was suggested that at least 12 months of regular counselling, with graduated reduction in frequency over the last three to six months of that period, would be appropriate. It was noted that counselling was available both in detention and in the community. It was also noted that there had been numerous attempts to improve the respondent's welfare and family situation, but environmental and social interventions remained the most important factors in shaping his future development.
41 A Court Report dated 27 September 2002 noted that it was readily apparent that the respondent's development had been adversely affected by issues associated with unstable accommodation; sporadic parental guidance, care and protection; and exposure to family violence. These issues, combined with the respondent's substance misuse were identified as the key factors contributing to his offending behaviour. However, both of the offences for which he was then before the Court were described as opportunistic rather than premeditated. Intoxication may have been an inhibiting factor in the offences committed at Balga.
42 As at 27 September 2002, the respondent had spent 165 days in custody in respect of the relevant offences. He was also in breach of an Intensive Youth Supervision Order with detention. It was suggested that in considering a suitable disposition, the Court may wish to consider cancelling the current order and incorporate all matters currently before the Court. Alternatively, it was suggested that the Court may consider dismissing the original offences having regard to time spent in custody. The respondent was aware of his obligations under possible orders and the consequences of non-compliance. The learned sentencing Judge proceeded to sentence the respondent on 27 September 2002.
43 Some of the offences for which he was to be sentenced were the subject of a Conditional Release Order which was breached by the reoffending on 17 May 2002 by the commission of the sexual offences to which I have referred.
44 In addition, he was to be sentenced for the further serious sexual offences committed on 28 March 2002 and the burglary offence committed on 4 April 2002 at Sylvester's Nightclub, which was part of a series of offences committed on those premises on that particular night.
(Page 17)
45 It was noted that on 3 May 2002 he had been sentenced to a term of detention for some other burglary offences. This sentence was reviewed by her Honour on 15 May 2002 when a sentence of detention with a Conditional Release Order for 6 months was imposed. Two days later, on 17 May 2002, the respondent committed the sexual offences to which I have referred.
46 In September 2002 he was charged with the sexual offences committed in Kalgoorlie on 28 March 2002. These offences were committed when the respondent was the subject of a Youth Community-Based Order made on 19 March 2002. He pleaded guilty to the Kalgoorlie sexual offences on 12 September 2002. Her Honour was not aware of these offences when she reviewed the sentence of detention on 15 May 2002. Her Honour then proceeded to detail the respondent's personal history. He was born and raised in Kalgoorlie. He is one of two children of parents who had been involved in a de facto relationship which lasted for four years. His upbringing was described as "particularly tragic". His mother is intellectually impaired and was unable to care for the children. The respondent had little, if any, contact with his mother after the age of six. His father was described as "an alcoholic itinerant" and has never been substantially involved in caring for the family.
47 Reference was made to the reports to which I have referred that since first coming to the attention of the Department for Community Development at the age of six, the respondent's life had been characterised by unstable and highly disruptive placements with extended family members and various other foster families. Between the ages of six and 12, he had been the subject of no less than 17 different short-term placements. Throughout that time he was exposed to family and other violence. The only relatively stable environment in his life has been while living with the aunt to whom I have referred. The respondent was publicly reprimanded by his aunt at the recent funeral of his grandfather and at the time he appeared for sentence, he was totally alone with no family support. His schooling had been very sporadic as a result not only of his unstable accommodation but the lack of supervision. As a consequence, he functioned at the lower primary level, notwithstanding that he was 16 years of age. He has no experience of independently paid work.
48 He has an extensive history of substance abuse from the age of six including sniffing solvents, daily cannabis use and occasional alcohol use, which has led to the commission of offences while under the influence of alcohol. His experience in a drug-free environment in detention has
(Page 18)
- resulted in a general feeling of well-being and a stated intention not to resume substance abuse on release.
49 The learned sentencing Judge concluded from the information in the reports that the sexual offending was opportunistic rather than premeditated. The respondent was "somewhat shamed" by his behaviour. The offences in Kalgoorlie were committed at a time when the family with whom he was living had left Kalgoorlie without telling him. He was left to his own devices, lonely and isolated. He wandered the streets aimlessly "sniffing". Nonetheless, serious offences were committed against a defenceless woman who had no chance of defending herself against a persistent and violent attack.
50 Her Honour found that significant psychological intervention and counselling was required for the respondent. Although he was unable to articulate why his conduct was wrong, he did accept responsibility for his behaviour, but he had very limited insight into the effects of his conduct on his victims. Both of the sexual offences were committed in a determined and aggressive manner constituting a terrifying ordeal for the two women involved.
51 In imposing sentences for the offences, her Honour made it clear that deterrence and punishment were significant factors, although not the only factors. As her Honour put it:
"The rehabilitation of a young offender is always a significant factor, and is sometimes referred to as the dominant factor. [The respondent's] rehabilitation can only be achieved through extensive long-term counselling, but more than that, there needs to be a fundamental change in his lifestyle. The psychologist is of the view that environmental and social interventions may be the most important factors in shaping [the respondent's] development and hence his future rehabilitation."
52 Her Honour then proceeded to impose the sentences to which I have referred, before arriving at a sentence of 2 years and 6 months.
53 The learned Judge backdated the sentence to 17 May 2002, when the respondent was taken into custody in relation to these offences. Her Honour concluded the sentencing process as follows:
"I have addressed my mind to the provisions of section 121 of the Young Offenders Act and declined to fix a minimum term in accordance with the formula provided in that section.
(Page 19)
- Accordingly, the minimum term will be served in accordance with the law, namely, the provisions of the Young Offenders Act, which will be a term of half the 30 months, 15 months when the Supervised Release Board will consider whether [the respondent] should be released into the community on supervised release. This is not a decision for the court to make."
The Merits of the Appeal
54 In my opinion, the Crown's grounds of appeal are interrelated. The essence of the Crown's case was encapsulated in grounds 4 and 5. The issue raised by grounds 1 and 2, that the individual sentences imposed were inadequate, was not pressed. The focus of the appeal was on the way in which the learned President applied the totality principle and directed that a number of sentences be served concurrently. It was contended in ground 3 that the aggregate sentence was manifestly inadequate and in ground 4, that the learned President erred in placing too much weight on matters personal to the respondent. Finally, ground 5, which, as I have said, was added at the hearing, sought to draw the earlier grounds together by contending that the sentences imposed in respect of the various charges should not have been ordered to be served concurrently with Charge Nos. 02/1764 to 02/1768 inclusive.
55 As to the submission that the learned Judge erred in placing too much emphasis on matters personal to the respondent, it was submitted, that while the learned President acknowledged that the sexual offences committed by the respondent were determined and aggressive, subjecting the two complainants to a terrifying ordeal, her Honour had, in effect, given too much weight to the respondent's personal background and the circumstances that had contributed to his offending.
56 It is true that her Honour outlined the respondent's extensive history of substance abuse and noted that the offences giving rise to the subject of Charges Nos. 02/1764-02/1768 were committed while the respondent was under the influence of alcohol. In my opinion, this circumstance of itself was not a truly mitigating factor, although social deprivation and an apparent lack of exposure to a constructive environment in which to learn appropriate values and respect for the lives and property of others, contributed to the respondent's conduct and attitudes. In my opinion, the respondent's youth and deprived background were the primary mitigating
(Page 20)
- factors, but this needed to be looked at in a context of both the need to protect the community and to impose an appropriate punishment.
57 It was contended by counsel for the Crown that her Honour's focus on the respondent's history and lifestyle, in the context of what was described as a "cursory analysis" of the circumstances of the offences, detracted from a proper consideration of the need to protect the community from the respondent: cfR v Shaharuddin [1999] WASCA 229 at par [53] per White J. In my opinion, although youth is always a significant mitigating factor, the circumstances of the offences and the character and antecedents of the offender may have the result that both the need to protect the community and for the purposes of deterrence, personal and general, a significant custodial sentence is required to be imposed: cfAinsworth v "D" (A Child) (1992) 7 WAR 102 at 117 per Malcolm CJ (with whom Franklyn and White JJ agreed); R v "VC" (A Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999 per Malcolm CJ at 8, 13-14 (with whom Pidgeon and Ipp JJ agreed); Fyfe v The Queen, unreported; CCA SCt of WA; Library No 980142; 18 March 1998 per Franklyn, Murray and Anderson JJ at 8, 10-11; and Norris v "AT" (A Child) [2003] WASCA 54 at [47] per Malcolm CJ (with whom Templeman and Miller JJ agreed). In my opinion, this case was also one which fell into the same category.
58 Given the number and nature of the offences involved, and the number of sentences imposed, this case was an appropriate one for the application of the totality principle. This required the learned sentencing Judge, having determined on the individual sentences appropriate for each of the offences, to ensure that the total sentence imposed reflected not only the gravity of the individual offences, but was sufficient in aggregate to reflect in a proportionate manner the total criminality involved in this particular series of offences. The rationale and application of the totality principle was most recently considered by this Court in Herbert v The Queen [2003] WASCA 61 at [10] – [74] per Malcolm CJ and at [140] – [149] per Anderson J and at [175] per Miller J.
59 In the present context, it must be accepted that youth is a powerful mitigating factor and in sentencing a young offender, rehabilitation is normally a dominant consideration. In a particular case, such as the present, this must be weighed against the circumstances of the offences and the offender's character: Noddy v The Queen [1980] WAR 132 at 133 per Burt CJ; Kalalo v The Queen, unreported; CCA SCt of WA; Library No 6215; 14 March 1986 per Burt CJ at 7-8 and Smith J at 4-5; Yorkshire v The Queen, unreported; CCA SCt of WA; Library No 7169;
(Page 21)
- 2 May 1988 per Wallace and Smith JJ at 10-13; and R v Walker, unreported; CCA SCt of WA; Library No 7326; 20 October 1988 per Malcolm CJ and Walsh J at 6-9.
60 In my opinion, given the number, nature and seriousness of these offences and, in particular, the two series of sexual offences, the subject of Charge Nos. 02/3047 to 02/3050 and 02/1764 to 02/1768 combined with the other offences, including burglary, for which the respondent was sentenced, a reduction from the total of 10 years and 9 months to 2 years and 6 months, resulted in a mis-application of the totality principle, both in its application to the total criminality involved and, in particular, in relation to the two sets of sexual offences and in relation to the end result when all of the other offences for which the respondent was sentenced are taken into account.
61 In my view, taking full account of the sentencing principles applicable to the sentencing of juvenile offenders, to which I have referred, including the respondent's disadvantaged background and individual circumstances, his substantial prior record and his prior responses to contact with the juvenile justice system, the sentencing discretion of the learned President miscarried.
62 The total sentence of 2 years and 6 months' detention imposed was therefore manifestly inadequate and not an appropriately proportionate response to the totality of the chapters of criminal behaviour involved. In my opinion, the learned President erred in placing too much emphasis on matters personal to the respondent in balancing those matters against the need for the imposition of a deterrent sentence commensurate with the seriousness of the two episodes of sexual offending. While her Honour acknowledged that the sexual offences committed by the respondent were determined and aggressive, subjecting both of the complainants to a terrifying ordeal, her Honour did err in giving too much weight to the respondent's background and the circumstances that may have contributed to his offending.
63 Her Honour outlined the respondent's extensive history of substance abuse and noted that the offences giving rise to Charge Nos. 02/1764-02/1768, were committed while the respondent was under the influence of alcohol. In my opinion, these circumstances, of themselves, were not truly mitigating factors, although social deprivation and an apparent lack of exposure to a constructive environment in which to learn some values and respect for the lives and properties of others, which her Honour also took into account, clearly contributed to the
(Page 22)
- respondent's conduct and attitudes. The respondent's youth and deprived background were the primary mitigating factors.
64 It was contended, however, that her Honour's focus on the respondent's history and lifestyle, in the context of what was described by counsel as a "cursory analysis" of the circumstances of the offences, detracted from a proper consideration of the need to protect the community from the respondent: cf R v Shaharuddin (supra).
65 It was not contended by the Crown that any of the individual sentences imposed were manifestly inadequate. There was no appeal by the Crown against any of the concurrent sentences imposed for the aggravated burglary sentences because these were to be served concurrently. The total effective sentence for these offences was 9 months rather than a total of 2 years, had they been imposed cumulatively.
66 In my opinion, having regard to the total chapter of criminality involved in the commission of the various offences, a total sentence of 2 years and 6 months was manifestly inadequate as an appropriate response.
67 The total sentence imposed for the aggravated burglary and attempted aggravated burglary offences was a sentence of detention for 9 months being the sentence imposed in respect of Charge No. 02/2011. All of the other sentences imposed for the remaining offences of attempted burglary were ordered to be served concurrently with each other and with the sentence of 9 months to which I have referred. In my view, a total sentence which adequately reflected the totality of the respondent's criminal conduct, taking into account the principle of proportionality, would have been a sentence of 6 years and 9 months, taking into account the principle of double jeopardy, in the sense that in a Crown appeal, the respondent's liberty is at risk for a second time. Thus, a relatively conservative approach must be taken.
68 The imposition of a total sentence of 6 years and 9 months would be achieved on the basis that the sentence of 9 months, for the offence of aggravated burglary or attempted aggravated burglary, which were not contested on the appeal, would remain. So far as the sentences for Charge Nos. 02/3047 to 02/3050 are concerned, the sentences should be restructured so that the total sentence for these offences would be 3 years. This would be achieved by making the sentence of 2 years in respect of Charge No. 02/3048 and the sentences in respect of each of Charge
(Page 23)
- Nos. 02/3049 and 02/3050, each of 6 months, cumulative with the sentence on Charge No. 02/3047 of 9 months remaining concurrent.
69 So far as Charge Nos. 02/1765-1768 are concerned, I would restructure the sentence so that the sentences of 9 months on each of Charge Nos. 02/1765 and 1766, together with the sentence of 18 months on Charge No. 02/1767 were made cumulative and the sentence on Charge No. 02/1764 of 6 months cumulative was varied to be 6 months concurrent. The total sentence for these offences would then be 3 years.
70 Finally, I would direct that the sentence of 9 months in respect of the aggravated burglary, the subject of Charge No. 02/2011 be served cumulatively upon all of the other sentences, making the total sentence to be served for all of the subject offences, 6 years and 9 months. In the circumstances, I would not set a different period as the minimum period to that referred to in s 124 of the YO Act where the respondent could be released after 50 per cent of the term of the sentence for detention has been served.
71 For these reasons, I would allow the appeal and vary the sentences imposed to the extent that I have indicated.
72 MURRAY J: I agree, for the reasons given by Malcolm CJ, that this appeal should be allowed. I am content that the sentences should be restructured in the manner proposed by his Honour.
73 PARKER J: For the reasons published by the Chief Justice I agree that this appeal should be allowed and the sentences varied as indicated by the Chief Justice.
9
8
3