R v "W" (A Child)
[2003] WASCA 118
•13 JUNE 2003
R -v- "W" (A CHILD) [2003] WASCA 118
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 118 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:25/2003 | 20 MAY 2003 | |
| Coram: | MURRAY J WHEELER J MCLURE J | 13/06/03 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN "W" (A CHILD) |
Catchwords: | Criminal law Sentencing Offender severely intellectually disabled Significant risk of exposure to and exploitation by other offenders in detention Totality principle Turns on own facts |
Legislation: | Young Offenders Act 1994 (WA) |
Case References: | Dinsdale v The Queen (2000) 202 CLR 321 Herbert v The Queen [2003] WASCA 61 Jarvis v The Queen (1998) 20 WAR 201 R v Western [2001] WASCA 194 R v "DP" (A Child) [2003] WASCA 92 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- "W" (A CHILD) [2003] WASCA 118 CORAM : MURRAY J
- WHEELER J
MCLURE J
- Appellant
AND
"W" (A CHILD)
Respondent
Catchwords:
Criminal law - Sentencing - Offender severely intellectually disabled - Significant risk of exposure to and exploitation by other offenders in detention - Totality principle - Turns on own facts
Legislation:
Young Offenders Act 1994 (WA)
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr M Mischin
Respondent : Mr R M Utting
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Donna Webb & Associates
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
Herbert v The Queen [2003] WASCA 61
Jarvis v The Queen (1998) 20 WAR 201
R v Western [2001] WASCA 194
Case(s) also cited:
R v "DP" (A Child) [2003] WASCA 92
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1 MURRAY J: I have had the advantage of reading in draft the reasons for decision now published by Wheeler J. I agree with them. There is little that I wish to add.
2 In my view also, these sentences, in their aggregate effect, although lenient, are not such as to reveal a miscarriage of sentencing discretion sufficient to warrant the intervention of this Court.
3 I have regard to the nature of the two offences, the fact that the respondent was aged 16 years when the offences were committed and was 17 when sentenced, and the principles of juvenile justice set out in the Young Offenders Act 1994 (WA) which lay stress on the need for the court to take a rehabilitative, rather than a punitive, approach to sentencing children.
4 I respectfully agree with Wheeler J that the respondent's severe intellectual handicap would make this case a relatively inappropriate occasion for the imposition of a substantially deterrent sentence.
5 Finally, of course, I must have regard to the fact that this is a Crown appeal, subject to the usual restraints attendant upon such cases: Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at 340 – 341 [61] – [62].
6 WHEELER J: This is a Crown appeal against sentence. The facts presented the learned President of the Children's Court with a very difficult sentencing decision. The sentence which she imposed is undoubtedly a lenient one, considering the gravity of the offences of which the respondent was convicted. However, I am unable to find that her discretion miscarried in the circumstances of this case.
7 On 13 December 2002 the respondent was convicted after trial of one count of sexual penetration of a child under the age of 13 years, and one count of sexual penetration without consent.
8 As to the first count, the complainant was asleep in her aunt's house in Forrestfield. She was 12 years of age. It appears that she had known the respondent, who was then 16 years of age, since she was a very young child. She and a number of other relatives were asleep on mattresses which had been pushed together in the lounge room, while the respondent had been sleeping on a chair. She woke during the night and found someone was touching her and had inserted his fingers into her vagina. He had unbuttoned the fly of her jeans in order to do so. Once she stirred, he left the room immediately but she peeked out from underneath her blanket and saw him leaving. The next day she confronted him and asked
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- if he had touched her and he denied it, attempting to blame another person.
9 Count 2 related to another occasion during the same year. The complainant in that case was a mature woman who was related in some way to the respondent. Again, it was an occasion in which a number of people were staying in the house of others who were known or related to them. The complainant went to bed substantially affected by alcohol and drugs. She was fully clothed at the time. At some time in the early hours of the morning (at around 4 or 5 am) she woke to see someone coming into the room with a sheet over his head. Because of the sheet she did not recognise him, although she noticed that he was wearing a maroon guernsey which had been worn by the respondent earlier in the night. He climbed in behind her and pulled down her tracksuit pants and knickers. She said she was in shock and crying; because of the size of the person she was frightened. The respondent is, it should be noted, substantially overweight. The medical reports refer to a number of conditions which he has suffered, including what was described as a "grossly bulimic" eating pattern. Despite the complainant's efforts to push her legs together so that he was unable to effect penetration, he persisted and inserted his penis into her vagina from behind. There was no conversation save for the respondent saying at one stage: "It's alright. Digger's here." It appears that "Digger" was the nickname of a person known to both of them. The next morning the complainant complained to one of the other women in the house. The respondent was interviewed by police and admitted having sex with the complainant but said in effect that she had consented.
10 As to the objective seriousness of the offences, the appellant submits that each of them is a serious offence. That is true, in the sense that sexual offences are serious offences, as reflected by the maximum penalty prescribed by the legislature for offences of this type. However, neither can be described as one of the most serious of its kind. In relation to count 1, the complainant was a year under the age of 13, and the respondent relatively close to her in age. The sexual penetration appears to have been brief and was immediately desisted from when she stirred. It appears to have been opportunistic rather than premeditated. It was a digital penetration only, and there was no attempt at force or intimidation. In relation to count 2, that was obviously a more serious offence. Although there was use of force necessary to effect penetration, there was no force or intimidation over or above that. The use of the sheet as a disguise suggests some degree of premeditation. Although the complainant was upset and frightened, it is not clear how apparent her state would have been to the respondent, for reasons to which I now turn.
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11 The personal circumstances of the respondent are very unusual. He was of course a child at the relevant time and that in itself is a significant mitigating factor. However, he is also intellectually extremely disabled. It is not unusual for offenders to be somewhat beneath the average level of intellectual functioning. However, psychological testing of the respondent showed him to be in the bottom 1000th of the population for intellectual ability. His intellectual disability was such that there was a real question about his fitness to stand trial. To illustrate the level of the respondent's intellectual functioning, I note that although he is able to write his name, the psychologist's assessment is that the way in which he wrote the letters, indicated that he was in effect copying a pattern which he knew to be his name rather than writing letters which he understood. He does not understand money, so that in a shop he will simply hand money over and wait to see if there is change; he knew approximately nine of the 26 letters of the alphabet.
12 It is clear from the respondent's denial of count 1 and his attempt at disguise in relation to count 2, that he understood that what he was doing on those occasions was wrong. However, the general discussion of his attitude to the offences in the psychological reports suggests that he has extremely limited understanding of the social significance of the offences, let alone the possible impact of the offences on the victims of them.
13 It was clear from the pre-sentence reports that the respondent was reluctant to discuss the offences at all. Initially that appears to have been because he was interviewed by female staff with whom, as a young Aboriginal male, he felt it most inappropriate to discuss sexual matters. He did discuss the offences with a male psychologist after considerable prompting, but the discussion was largely limited to the respondent saying things such as "I can't remember", "it makes me feel sick", and "it makes me angry and I will kill myself".
14 As to the respondent's history, it was described as being characterised by severe behavioural problems at home and school, the bullying of the respondent by others, substance misuse and minor opportunistic offending. He has support from the Disability Services Commission for daily living support. He had attempted suicide while in high school and was extremely apprehensive about detention.
15 So far as risk factors for future offending were concerned, it was considered that he displayed a limited education with respect to consent in relationships, poor insight into the consequences of such behaviour, and inadequate coping skills for appropriately dealing with sexual arousal.
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- Some favourable factors in that respect included his apparently stable relationship with his girlfriend, with whom he had had a son, and supportive parents. It appears that the respondent's girlfriend gave him a great deal of support for daily living, including such matters as managing the Centrelink benefits which he received. The Juvenile Justice support strategy recommended for the respondent included mediation referral to the Victim Mediation Unit, substance abuse and psychological counselling, and potentially the employment of a male Aboriginal mentor.
16 It was against that background that her Honour imposed a sentence of 9 months detention in respect of the first count and 12 months in relation to the second, to be served concurrently. As to concurrency, her Honour noted that given that there were separate and distinct offences, ordinarily it might be appropriate to direct that they be served cumulatively, but in her view:
"Given the strong need for [the respondent's] rehabilitation, which can effectively be dealt with in the community rather than in detention, and the risks that this young person faces in detention, some of which I have already outlined, as well as the potential for self-harm which is mentioned in the reports, it is my view that the sentences should be served concurrently."
17 Turning first to the ground of appeal which is to the effect that the sentences individually and overall were manifestly inadequate, it seems to me that her Honour appropriately assessed the gravity of the offending. This was a matter which had gone to trial, and her Honour had had the opportunity fully to understand the circumstances of the offences, and to observe the complainants in each case. There is nothing to suggest that she misused that advantage or failed to give weight to the seriousness of the offences.
18 It is suggested that she gave undue weight to the respondent's intellectual disability. However, I do not accept this submission. The intellectual disability was very significant. There was in my view some reduction of moral culpability, notwithstanding that the respondent knew that what he was doing was wrong. The appellant refers to R v Western [2001] WASCA 194 (at [22] Steytler J and [41] Miller J) for the proposition that a significant reduction in the normal sentence because of intellectual disability should not be granted where the offender does know that what he is doing is wrong and is able to desist from offending. I do not think that case stands for that proposition. It was a case in which the Court considered that the sentencing Judge had failed to reflect the
(Page 7)
- culpability of the respondent and had imposed a sentence which was unduly lenient. However, the Court did accept that the psychiatric and psychological evidence in that case, notwithstanding that it did not go so far as to suggest that the respondent did not understand the nature of his wrongdoing, was "undoubtedly indicative of reduced mental capability (and culpability)" ([22] per Steytler J), and the Court in that case imposed a sentence which, although greater than that imposed by the sentencing Judge, was a relatively lenient sentence for an offence of the kind there in question.
19 Two further factors which interact, are the appellant's submission that the learned President erred by assuming that the respondent's rehabilitation can be effectively dealt with in the community, rather than within the detention environment, and in mitigating sentence by reason of the "risk" of exposure to and exploitation by other offenders whilst in detention. While it is true that, as the appellant points out, there is a risk of such exploitation in all cases where a child is sentenced to detention, the risks were in my view particularly significant in the case of the respondent. Because of his intellectual incapacity, he was, even more than the majority of other child offenders sentenced to detention, likely to be unduly influenced by, led astray by, and exploited by, other more hardened juvenile offenders. His history revealed that he had already been the subject of bullying and exploitation at school and in other circumstances when younger. It was appropriate for her Honour to give particular weight to this factor in relation to the respondent, and to consider that it would adversely affect his prospects for rehabilitation if he were to remain in detention for a significant period of time.
20 The second ground of appeal is to the effect that her Honour erred in ordering the two terms of detention to be served concurrently. It is submitted that, having already considered the factors of the need for rehabilitation and the risks of detention in fixing the terms of detention, it was not appropriate for her Honour to revisit them in considering whether the sentences should be made concurrent. In my view, that submission is wrong in principle. In a discussion of the totality principle in "Thomas: Principles of Sentencing" (2nd ed 1979) the learned author says at 57 - 58, that a cumulative sentence may offend the totality principle if "it its effect is to impose on the offender 'a crushing sentence' not in keeping with his record and prospects" and that this represents "an extension of the principle of mitigation". The author goes on to say, at 59, that this aspect of the totality principle:
(Page 8)
- "… appears to require a sentencer who imposes a series of consecutive sentences to consider the mitigating factors in relation to the totality of the sentence, even though they have already been considered in relation to the individual component parts".
- That passage was discussed and apparently adopted in Jarvis v The Queen (1998) 20 WAR 201 (per Ipp J at 205 - 207) and more recently in Herbert v The Queen [2003] WASCA 61 at [19] per Malcolm CJ. While one would hardly describe a sentence of 21 months detention as "crushing" in the ordinary meaning of the term, it was appropriate for her Honour to revisit the principles which she did revisit in order to determine whether or not the sentences should be made cumulative. Having regard to the peculiar circumstances of this respondent, her decision to order concurrency, although the end result was a very lenient one, does not appear to me to display any error of principle. The overall result is not so far outside the range of a sound sentencing discretion, having regard to the unusual circumstances of this respondent, as to manifest error.
21 I would dismiss the appeal.
22 MCLURE J: I have had the advantage of reading in draft the reasons for decision published by Wheeler J. I agree with them and have nothing to add.
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