R v KC
[2003] WASCA 144
•27 JUNE 2003
R -v- KC [2003] WASCA 144
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 144 | |
| COURT OF CRIMINAL APPEAL | 27/06/2003 | ||
| Case No: | CCA:7/2003 | 3 JUNE 2003 | |
| Coram: | MURRAY J WHEELER J ROBERTS-SMITH J | 3/06/03 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN KC |
Catchwords: | Criminal law and procedure Sentencing Child offender Convictions of a series of sexual offences against one complainant on one occasion Serious offences Rehabilitative approach to sentencing child General principles discussed Aggregate term of 3 years imprisonment not manifestly inadequate |
Legislation: | Sentencing Act 1995 (WA) Young Offenders Act 1994 (WA) |
Case References: | AM (A Child) & Anor v The Queen, unreported; CCA SCt of WA; Library No 960263; 5 February 1996 Cranssen v The King (1936) 55 CLR 509 Dinsdale v The Queen (2000) 202 CLR 321 R v DP (A Child) [2003] WASCA 92 R v Grein [1989] WAR 178 R v Peterson (1984) WAR 329 R v Suarez-Mejia (2002) 131 A Crim R 564 R v Tait (1979) 24 ALR 473 R v VC (a Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999 Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 C (a Child) v The Queen (1995) 83 A Crim R 561 R v Sharharuddin [1999] WASCA 229 R v White [2002] WASCA 112 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- KC [2003] WASCA 144 CORAM : MURRAY J
- WHEELER J
ROBERTS-SMITH J
- Appellant
AND
KC
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Child offender - Convictions of a series of sexual offences against one complainant on one occasion - Serious offences - Rehabilitative approach to sentencing child - General principles discussed - Aggregate term of 3 years imprisonment not manifestly inadequate
Legislation:
Sentencing Act 1995 (WA)
Young Offenders Act 1994 (WA)
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R E Cock QC and Ms A J Burrows
Respondent : Mr R A Mazza
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Ian Hope
Case(s) referred to in judgment(s):
AM (A Child) & Anor v The Queen, unreported; CCA SCt of WA; Library No 960263; 5 February 1996
Cranssen v The King (1936) 55 CLR 509
Dinsdale v The Queen (2000) 202 CLR 321
R v DP (A Child) [2003] WASCA 92
R v Grein [1989] WAR 178
R v Peterson (1984) WAR 329
R v Suarez-Mejia (2002) 131 A Crim R 564
R v Tait (1979) 24 ALR 473
R v VC (a Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999
Case(s) also cited:
Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
C (a Child) v The Queen (1995) 83 A Crim R 561
R v Sharharuddin [1999] WASCA 229
R v White [2002] WASCA 112
(Page 3)
1 MURRAY J: There has recently been brought to the Court a number of Crown appeals against sentences passed by the Children's Court. This is one such case.
2 As such the appeal is subject to the constraints arising out of the fact that a Crown appeal places again in jeopardy the final disposition of the case from the point of view of the respondent. As Kirby J put it in Dinsdale v The Queen (2000) 202 CLR 321 at 341 [62]:
"…a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentence."
3 The resistance to appellate tinkering with sentences is by no means solely a feature of Crown appeals. It is important to remember that it is necessarily a feature of any appeal against sentence, whether by the prosecution or the convicted person. It stems from a recognition that the act of sentencing an offender involves a discretionary judgment on the part of the sentencing court. It is perhaps the most difficult discretionary judgment which a judge is called upon to make. That is so because of the inevitable complexity of the mix of aggravating and mitigating circumstances which will be encountered differently in every case. It is for that reason that appellate review of sentences depends, as the High Court made clear in Dinsdale, upon the demonstration of an error of principle or, perhaps more usually, the demonstration of error by establishing that the sentence imposed is manifestly or plainly inadequate or excessive as the case may be. As Gleeson CJ and Hayne J said in Dinsdale, at 325 [6]:
"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of specific error in the reasoning of the sentencing Judge and which
(Page 4)
- frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive."
4 Reference may also be made to the discussion of such matters in the judgment of Parker J in the recent case of R v Suarez-Mejia (2002) 131 A Crim R 564 at 579 – 580 [64] - [67].
5 The grounds of appeal in this case relied substantially on the proposition that the individual terms imposed by the sentencing Judge were manifestly inadequate and the aggregate of those terms was manifestly inadequate in all the circumstances of the case, being those concerned both with the seriousness of the offences and the personal circumstances of the respondent. Those concerned with the nature of the offences committed were particularised in ground 1. The particulars are substantially accurate, although in one or two respects they could not be made out as a matter of fact.
6 The offences with which the appeal is concerned were committed on two occasions upon the same complainant. The first occasion was on 11 August 2002. The offence committed on that date was one of aggravated burglary. The circumstance of aggravation was that the respondent knew or ought to have known that there was another person in the place entered which was, in fact, the complainant's home. For that offence a sentence of 12 months imprisonment was imposed.
7 All the remaining offences were committed some weeks later on 14 September 2002. As I have said, the victim of the offences on this occasion was the same person as had been involved in the offence committed on 11 August 2002. Again, there was an offence of aggravated burglary committed on 14 September 2002 and the same circumstance of aggravation applied on this occasion also. The complainant was at home and she was attacked by the respondent and sexually assaulted. A great number of offences of this kind were charged. Although the incident involved one continuing course of conduct over a period of time, there were 13 offences of aggravated sexual penetration, three of attempted aggravated sexual penetration, one offence of aggravated indecent assault, an assault occasioning bodily harm and four assaults. The circumstance of aggravation relied upon was in each case the same, the causing of bodily harm to the victim. That was also the bodily harm separately charged. The four assault offences involved other separate applications of force which were not alleged to have caused any physical injury.
(Page 5)
8 Different sentences were imposed for the various offences committed on 14 September. For the offence of burglary, again a sentence of 12 months imprisonment was imposed. Each of the offences of aggravated sexual penetration attracted a sentence of 18 months imprisonment. Sentences of 15 months imprisonment were imposed for the offences of attempted aggravated sexual penetration. 9 months imprisonment was imposed for the offence of aggravated indecent assault. That was also the sentence imposed for the assault occasioning bodily harm. For the four offences of assault, terms of 6 months imprisonment were imposed.
9 Two of those terms were imposed cumulatively upon the 12 months imprisonment imposed for the offence committed on 11 August 2002. One such cumulative term was for the first offence of sexual penetration and a cumulative term of 6 months imprisonment was imposed for one of the assault offences. That was an offence committed by the respondent placing his thumbs over his victim's eyes and exerting what was described as "solid pressure" for a short time before releasing the pressure. The other assault offences were, firstly, a second act of that kind, secondly, an act of pressing with his thumbs on either side of the victim's neck and, thirdly, an act of taking hold of her arm. Apart from the two sentences to which I have referred which were ordered to be served cumulatively, the rest of the sentences imposed for the offences committed on 14 September were permitted to be served concurrently.
10 The total effect, therefore, of the sentencing process was an aggregate term of 3 years imprisonment. An order of eligibility for parole was made. The sentences were of adult imprisonment because when the respondent appeared before the Children's Court to be sentenced he was just short of his 18th birthday. He was in fact aged 17 years and 6 or 7 months when he committed the offences in August and September 2002.
11 Upon the hearing of the appeal, the Court was unanimously of the view that it ought to be dismissed and that order was made. These are my reasons for joining in that order. I commence by describing the offences according to the findings of the sentencing Judge.
12 The burglary on 11 August 2002 was committed while the 43-year-old female occupant of the house was asleep, in the early hours of the morning. It is clear that the respondent committed the offence for the purpose of stealing property, but the complainant woke and disturbed him. They saw each other and the respondent ran off.
(Page 6)
13 There was evidence that some person or persons unknown knocked on the door or approached the house between that date and 14 September 2002, but, as her Honour the sentencing Judge observed, there was no evidence to establish that that was the respondent.
14 He returned, however, in the early hours of the morning of 14 September and, by cutting a flyscreen and forcing a window, the respondent got into the house. Again, the complainant was at home, asleep. She woke to find the respondent at the doorway to her bedroom. Again it is clear that he entered the house for the purpose of stealing property. It was accepted that the sexual offences were committed when, seeing the victim in a state of some undress, the respondent became sexually aroused. I shall return to this aspect when speaking about the respondent's personal circumstances.
15 At present the point to be made is that although the respondent was found by the sentencing Judge to be severely intoxicated, having "consumed an enormous amount of alcohol", there was some element of planning or premeditation involved in the burglary offence. Her Honour found that the house had been "targeted". She accepted that the respondent had made some attempt to disguise himself. He was wearing either a balaclava, or what may have been a hood of a windcheater to which he had made some modifications, to conceal his face. The complainant was unable to describe the disguise clearly. However, although the burglary was not committed on the spur of the moment there was no evidence that the purpose of entering the house was to commit sexual offences against the complainant and the sentencing Judge did not find that those were offences planned in that way.
16 It is necessary now to refer to the sexual offences which were committed. They were the subject of complaints brought in the Children's Court at Busselton. They commence with complaint no. 298, which was the first vaginal penetration by the respondent's penis. There was a struggle. The two persons fell off the bed. While the struggle continued on the floor the respondent kneed the complainant upon her thigh, which caused her pain and severe bruising. This was the assault occasioning bodily harm, complaint no. 299.
17 The respondent again penetrated the complainant's vagina while they were on the floor. He then lifted her onto the bed and penetrated her again. He withdrew his penis and reinserted it for a few seconds before again withdrawing his penis. He then exerted force upon her eyes and neck in the way described so as to commit three offences of assault. This
(Page 7)
- was followed by an act of digital penetration and two unsuccessful attempts at penile penetration.
18 The respondent wanted the complainant to loosen her hair. He pulled at it with sufficient force to cause clumps of her hair to actually come out of her scalp. This was an uncharged assault, not the one of the four assaults which was the subject of the term of 6 months imprisonment ordered to be served cumulatively.
19 The respondent then inserted his penis into the complainant's vagina three times, only to have it come out. He positioned the complainant on her hands and knees and attempted an act of anal penetration. With her in this position he achieved four further acts of penile penetration, momentarily on each occasion because his penis kept falling out. This caused the respondent to again roll the complainant onto her back and insert his penis. His movements were, not surprisingly, causing vaginal pain.
20 Her continual struggles and evident distress must have been very apparent to the respondent. Towards the end of the incident he placed his hand over her mouth and told her not to scream. As the attack went on his penis became only partially erect and he endeavoured to insert it into the complainant's vagina by the use of his fingers. From that account it can be seen why the incident generated a multiplicity of charges reflecting particular acts committed in the course of what was a course of conduct over an appreciable period of time.
21 Finally, the respondent simply stopped, put his trousers on and zipped up his clothing. The complainant made good her escape through an open window. As she did so she observed the respondent running away through the front garden. She returned to the house and called the police, who attended a short time later. The respondent was arrested five days later, on 19 September 2002. In the presence of his father he commenced a video record of interview in which it seems he began to make admissions of his offending before he retracted those statements and made no further admissions.
22 The sentencing Judge clearly appreciated the awful nature of the offences committed. She described them as "a sustained, determined and violent attack which completely humiliated and terrified the complainant", during the course of which she was assaulted on several occasions. Her pleas to the respondent to let her go and to leave the house were ignored. Her Honour had before her the complainant's victim impact statement. It
(Page 8)
- described the sort of effects, both physical and emotional, upon the complainant, which are to be expected from such a dreadful attack. The concluding paragraph reads:
"My life has changed drastically. I have never felt such fear, dislike, anger or mistrust of any individual, male or female, before. The invasion of my home and body has now left me with emotional scars and feelings of anxiety and humiliation."
24 The respondent had a criminal history which showed that he had first come before a Children's Court when he was 16 years of age. The record contained relatively few convictions. They were mainly for driving offences, what may be described as nuisance offences and a previous offence of burglary committed on 21 May 2002, for which a 6-month youth community based order had been made, an order to which the respondent was subject at the time of the commission of the offences in August and September 2002. It can be seen that those offences were, however, of an entirely different order of seriousness from any previously committed.
25 That the respondent's record was relatively of such a minor nature was remarkable in itself, given his childhood history as the sentencing Judge found it to be. His parents appear both to be alcoholics. Their relationship broke up when he was about 7. The respondent went with his mother, but his maternal grandfather assumed his care and he also was an alcoholic. The family situation seems to have been marked by conflict, physical violence and inadequate attention to the basic needs of the children. There was sexual abuse of an 11-year-old sister.
26 The respondent went to live with his father, firstly in the Perth metropolitan area and later in Busselton. He had to move out of this home periodically because of concerns arising from his father's misuse of
(Page 9)
- alcohol. On those occasions he stayed mostly with his paternal grandmother in Busselton.
27 Despite this fractured childhood, the respondent seems to have managed a reasonable level of basic education. He is interested in motor mechanics, but seems to have had no real opportunity to pursue this interest. At the time of these offences the respondent was mainly involved in socialising with friends. He was obviously living a semi-itinerant lifestyle. He had displayed difficulty in complying with attendance and supervisory conditions attached to previous youth community based orders.
28 However, despite his reported dysfunctional family life and upbringing, the juvenile justice report indicated that with support of an intensive kind he could be a hard worker and had talent in art and dance. The reporter mentioned as a "most welcome development" an opportunity for the respondent to live in Karratha with an uncle who was prepared to take responsibility for him. This person was described as highly respected in the north-west with "a very successful career in the mining industry." It was thought that such a placement would offer the respondent good prospects of obtaining employment and leading a law-abiding way of life.
29 The psychologist reported that the commission of the offences seemed to be related to a particular aspect of his dysfunctional family life which had caused him since he was about 10 to be exposed to explicit pornographic material and to have resulted in the conclusion that his sexual development had been shaped by the inappropriate exposure to this material and to sexual experiences within his wider family circle. Counselling was recommended to address the problems of perception created by these unsatisfactory childhood influences. The sentencing Judge noted these reports and, in my opinion, made a realistic evaluation of their contents. Her Honour concluded that there were tentative signs that rehabilitation was not out of the question.
30 Her Honour noted that the pleas of guilty had been made at an early stage. There was an acknowledgement of responsibility for the offences and her Honour found the respondent was truly remorseful for their commission. The respondent had displayed a degree of insight into the effect of the offences on the victim. Added to that, as I have mentioned, there were, as her Honour found, positive factors pointing towards the respondent's eventual rehabilitation, that he had, perhaps for the first time, available to him an appropriate form of family support and, again perhaps
(Page 10)
- for the first time, he seemed to be receptive to an expert counselling process to address his sexual offending and problems of alcohol abuse.
31 Against that background of the facts found by the sentencing Judge, which appear to me to unassailable, it is necessary, if I am to make clear the reasons why I joined in the order dismissing the appeal, that I now, by way of reminder, state the particular principles of sentencing children which, since the Young Offenders Act 1994 (WA) became operative on 13 March 1995 are to be found in that Act.
32 As s 4 of the Act makes clear, its provisions apply to young offenders who are children (under the age of 18 years) when the offence is committed. The objects of the Act are set out in s 6. They are all important, but perhaps of particular moment in relation to the sentencing process is paragraph (d), which provides that it is an objective of the Act:
"to enhance and reinforce the roles of responsible adults, families, and communities in –
(i) minimising the incidence of juvenile crime;
(ii) punishing and managing young persons who have committed offences; and
(iii) rehabilitating young persons who have committed offences towards the goal of their becoming responsible citizens;"
33 Section 7 sets out the general principles to be observed in dealing with children. Again, without detracting from the importance of all of those provisions, those which may be regarded as being of particular relevance to the sentencing process appear to me to be:
(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;
(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 as short a time as is necessary;
(Page 11)
- (j) punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;
(l) in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered;"
34 I pass over, without mentioning, numerous provisions of the Act which, in relation to dealing with child offenders, are clearly orientated towards a rehabilitative approach to dealing with such offending, wherever possible in the community, to give effect to the principle adopted by the legislature, which has long been the accepted view of the courts, that the best guarantee against future offending by a child is the rehabilitative approach directed towards preventing further offending and creating the means by which the offender may be encouraged as an adult to lead a law-abiding way of life to the advantage of the community.
35 When coming to sentence a young offender the court is reminded of the need to comply with the general principles of juvenile justice stated in s 7, by s 46. The matters generally to be considered are set out in s 46(2). I do not restate them here. They are the matters which will be generally relevant to the sentencing process, whether the offender is a young person or an adult. However, the provisions of subsections (3), (4) and (5) may be conveniently restated here:
"(3) The court is to dispose of the matter in a way that is in proportion to the seriousness of the offence and is consistent with the treatment of other young persons who commit offences.
(4) 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.
(5) The court is to have regard to the fact that the rehabilitation of an offender is facilitated by –
(a) the participation of the offender's family; and
(b) giving the offender opportunities to engage in educational programmes and in employment,
(Page 12)
- but the absence of such participation or opportunities is not to result in the offender being dealt with more severely for the offence."
36 I pass over the sections of the Act providing a comprehensive regime of punishments suited to giving effect to the objects of the Act in relation to the punishment and rehabilitation of children in the community. As to a custodial sentence, s 120(1) adds specifically to the general principles stated in s 7(h) that the court cannot impose any custodial sentence unless it is satisfied that there is no other appropriate way for it to dispose of the matter. It will be recalled that if it is found necessary, as it was in this case, to impose a custodial sentence, by s 7(h) that term is to be "for as short a time as is necessary."
37 This was not a case where the special provisions of Division 9 of Part 7 of the Act applied. Those provisions are concerned to deal with young offenders who commit serious offences (as these undoubtedly were) after having previously offended on at least two occasions when custodial sentences have been imposed. In that event, the Act recognises that efforts by a Children's Court to achieve the rehabilitation of the offender may have to take a back seat in preference to the need to protect the community and, by s 125, "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 matters referred to in s 46." A case of that kind was recently before this court in R v DP (A Child) [2003] WASCA 92; 6 May 2003.
38 Where does that leave us in respect of the sentencing of children? In my opinion, the legislature has for good reason, by the provisions of the Young Offenders Act, left the courts where they have always been in respect of the sentencing of children. A particular approach is taken, different from the sentencing of adult offenders. The general principles of sentencing are modified to make them appropriate to the child. Youth remains a powerful mitigating factor and the younger the offender the greater the mitigation. The punitive element in the sentencing process is given much less weight and the child is to be dealt with within a time frame appropriate to its age.
39 To give effect in respect of children to the general principle of sentencing – that the punishment should be proportionate to the criminality of the conduct involved, but also should have regard to the personal and particular circumstances of the offender, remains an important aim. The ultimate purpose of the process is to endeavour to
(Page 13)
- achieve a measure of protection for the community against the commission of criminal offences. In respect of child offenders it is clearly more appropriate to achieve that protection by rehabilitating the child offender than it is to adopt a punitive approach designed to reform through punishment. The rehabilitation of the child offender will hopefully be achieved in the community by reinforcing appropriate family support mechanisms, by providing instruction and assistance to deal with problems in the child's life which may be related to the offending behaviour and by providing the child with an understanding of what produces the offending behaviour, of the advantages of not continuing that behaviour and the disadvantages for the child's future life if the behaviour is not amended.
40 The remarks of her Honour the sentencing Judge in this case show that she fully appreciated the proper approach to this very difficult sentencing process. The gravity of the offending was undoubted, but it was also clearly established that the respondent was remorseful and that there remained a capacity to seek to achieve his rehabilitation. In my opinion it cannot be said that the exercise of her Honour's discretion so miscarried that this Court would be entitled to intervene. To my mind it was not established, as asserted by the grounds of the appeal, that the sentences imposed failed overall to adequately reflect the seriousness of the offences, having regard not only to the impact upon the victim, which was undoubtedly severe, but also to the nature and personal circumstances of the offender.
41 This respondent will serve a period of adult imprisonment. That is the most severe and punitive form of sentence which was open to the sentencing Judge and it is the sentence which the law clearly provides is to be regarded as the sentence of last resort. But there will be an opportunity during the service of the non-parole period for counselling and other instructive processes to be employed. The order of eligibility for parole will, after the service of the non-parole period, provide the opportunity for the respondent to be returned to the community subject to the control and assistance of a parole officer. Hopefully, there will be a placement with an appropriate family member who will assist to obtain employment for the respondent and enable him to achieve a responsible and law-abiding way of life.
42 To my mind the sentence does indeed strike an acceptable balance between the deterrent processes of sentencing and the capacity to work towards achieving the respondent's reformation. Therein lies the
(Page 14)
- community's best prospect of protection from further serious offending by this respondent in the future.
43 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Murray J. I agree with them and have nothing to add.
44 ROBERTS-SMITH J: I have had the benefit of reading in draft the reasons of Murray J for dismissing this appeal on 3 June 2003. I agree with his Honour's reasons and conclusion.
45 As Murray J points out, the imposition of a sentence is an exercise of judicial discretion. The law is well established that for an appeal against sentence to succeed, it must be shown that there was some identifiable error of fact or law or alternatively, that the sentence was so obviously disproportionate to the circumstances of the offence as to indicate there must have been some error even though it cannot be specifically identified. The classical statement of the law is that in Cranssen v The King (1936) 55 CLR 509 at 519:
"[This] … appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognised principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over severe. There must be some reason for regarding the discretion … as improperly exercised. This may appear from the circumstances which the court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has miscarried."
(Page 15)
46 Additional considerations apply in respect of a Crown appeal. In R v Tait (1979) 24 ALR 473 Brennan, Deane and Gallop JJ said at 387 - 388:
"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown 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. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally Skinner v The King (1913) 16 CLR 336 at 339-340; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v The King (1928) 41 CLR 230 at 249; Griffiths v The Queen (1977) 137 CLR 293).
Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration': per Barwick CJ, Peel v The Queen (1971) 125 CLR 447 at 452. A Crown appeal puts in jeopardy 'the vested interests that a man has to the freedom which is his, subject to the sentence of the primary tribunal': per Isaacs J, Whittaker v The King at 248. The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."
47 That has been held to be the law in this State (see R v Peterson (1984) WAR 329, 330; R v Grein [1989] WAR 178). The additional considerations applying to Crown appeals were recently repeated 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].
48 The facts are set out by Murray J and I do not need to repeat them. The offences were undeniably serious. What the respondent did to the complainant on 14 September 2002 was marked by sustained violence. Much of it was degrading and in that respect seemed to reflect the effect of the pornography and inappropriate sexual behaviour to which the respondent had been exposed. The experience was terrifying and
(Page 16)
- traumatic for the complainant, exacerbated by the fact that she was in her own home, where she was entitled to be safe and secure. The physical, emotional and psychological effects upon her, both at the time and subsequently, were made graphically clear in her victim impact statement. There would be very significant long-term psychological effects. As she expressed only one aspect, her life has changed drastically; the invasion of her home and body has left her with emotional scars and feelings of anxiety and humiliation.
49 There can be no doubt that had the respondent been an adult, he would have been sentenced to a term of imprisonment substantially longer than the 3 years actually imposed. But he was not an adult.
50 The respondent was born on 17 January 1985. He was 17 years old when he committed the offences and turned 18 years of age the day after he appeared before the learned President. That had two important consequences. The first was that as a matter of law her Honour had to deal with the respondent as a child in accordance with the statutory regime laid down by Parliament in the Young Offenders Act 1994 (WA). The second was that the respondent would serve a custodial sentence as an adult, in an adult prison (R v VC (a Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999). A result of the sentences actually imposed by her Honour therefore was that even though he turned 18 the following day, the respondent would have to serve 3 years imprisonment in an adult prison.
51 The Young Offenders Act specifically sets out provisions which embody the general principles of juvenile justice, for dealing with young persons (that is persons under 18 years of age) who have committed offences. Those general principles are contained in s 7 of the Young Offenders Act. Relevantly here, they include that young persons who commit offences are to be dealt with in a way which encourages them to accept responsibility for their conduct (s 7(b)); are not to be treated more severely because of the offence than the person would have been treated if an adult (s 7(c)) and that the community must be protected from illegal behaviour (s 7(d)). Further specific principles expressed in s 7 are:
(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 as short a time as is necessary;
(Page 17)
- (i) detention of a young person in custody, if required, is to be in a facility that is suitable for a young person and at which the young person is not exposed to contact with any adult detained in the facility, although a young person who has reached the age of 16 years may be held in a prison for adults but is not to share living quarters with an adult prisoner;
(j) punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;
(k) a young person who is dealt with for an offence should be dealt with in a time frame that is appropriate to the young person's sense of time;
(l) in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered; and
(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."
(Page 18)
"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, wherever 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, 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 the citation of relevant authority, in BAC (A Child) v R, unreported; CCA SCt of WA; Library No 950510; 25 September 1995 and R v M (A Child), unreported; CCA SCt of WA; Library No 950565; 19 October 1995."
54 The circumstances in The Queen v DP were markedly different from the present case. There the respondent had committed one offence of aggravated unlawful deprivation and two of aggravated indecent assault on 28 March 2002. On 17 May 2002 he committed five further offences.
(Page 19)
Those were two aggravated indecent assaults, one unlawful detention, one aggravated sexual penetration and one offence of causing bodily harm. These were committed whilst he was serving a Youth Conditional Order. He was also in breach of an Intensive Youth Supervision Order with detention. The respondent had previously also committed other offences, including burglary.
55 Malcolm CJ expressly found (at [11]) that the number and seriousness of the offences involved, set against the respondent's background of offending, placed him within the category referred to in s 125 of the Young Offenders Act. That section qualifies the principle otherwise reflected in the Act that rehabilitation is the dominant consideration in sentencing young offenders. It creates a category of offenders who commit "serious offences" (as defined in the section) after having previously served the whole or part of a custodial sentence for the commission of two previous serious offences.
56 Section 125 stipulates that in such a case the court is to give primary consideration to the protection of the community "ahead of all the other principles and matters referred to in section 46".
57 It is to be noted that s 125 does not imply abandonment by the sentencing court of the general principles of sentencing in respect of young offenders; it requires that when dealing with recidivists who commit serious offences, protection of the community be given consideration ahead of the other principles and matters which ordinarily apply. In other words, the protection of the community becomes the primary consideration but not to the exclusion of the other principles ordinarily applicable to the sentencing of young offenders.
58 In the present case the respondent does not fall into the category defined in s 125.
59 A further important point of distinction is that although the respondent was convicted of twenty--three offences, one was an aggravated burglary committed on 11 August 2002 and the remaining twenty-two were all committed on the one occasion on 14 September 2002. The latter constituted a continuing course of conduct. Her Honour recognised this, observing (although not by way of criticism) that it is relatively unusual for such a number of separate offences to be charged where there is a number of sexual penetrations constituting a course of continuing conduct within a very short period of time.
(Page 20)
60 As Murray J has pointed out, although the respondent has some criminal history it is relatively minor, with the exception of a previous conviction for burglary. Given the respondent's dreadful personal background and dysfunctional family life, it is significant that he did not begin committing offences until he was 16 years of age, and then they were only of a less serious kind. Nor had he previously been sentenced to a custodial term. The learned President was accordingly obliged to deal with him within the ordinary sentencing regime of the Young Offenders Act, which gives primacy to rehabilitation of young offenders.
61 Even in relation to adult offenders, it is a general principle that imprisonment is a sentence of last resort (s 6(4) Sentencing Act 1995 (WA)) and any term of imprisonment must not be any longer than the circumstances of the case demand. That same principle is made applicable by s 120 of the Young Offenders Act, which stipulates that a court cannot impose any custodial sentence on a juvenile offender unless satisfied there is no other appropriate way for it to dispose of the matter and by s 7(h) which is set out above.
62 The learned President clearly appreciated this was the statutory framework within which she was required to deal with the respondent. In my opinion, for the reasons given by Murray J, it was not shown by the appellant that the exercise of her Honour's sentencing discretion miscarried.
5
16
2