R -v- "W" (A CHILD) [2003] WASCA 118

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 118
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:25/2003	Heard:	20 MAY 2003
Coram:	MURRAY J WHEELER J MCLURE J	Delivered:	13/06/03
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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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

HEARD : 20 MAY 2003 DELIVERED : 13 JUNE 2003 FILE NO/S : CCA 25 of 2003 BETWEEN : THE QUEEN

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

(Page 3)

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v "W" (A Child)

Details

AGLC: R v "W" (A Child) [2003] WASCA 118
Case: [2003] WASCA 118
Decision Date: 13 JUNE 2003

CaseChat Overview and Summary

The case before the court involved an appeal by the respondent, a severely intellectually disabled child, against their conviction and sentence. The child was found guilty of sexually assaulting another child and was sentenced to a period of detention. The child's counsel argued that the sentence was inappropriate given the child's intellectual disability and the significant risk of exploitation by other offenders if they were to be detained. The appeal was heard by the court of appeal.

The primary legal issue before the court was whether the sentence imposed on the child was appropriate in light of their intellectual disability and the risks associated with detention. The court had to consider the principles of sentencing for intellectually disabled offenders and the need to balance the risks of detention with the need to protect the community. The court was also required to consider the totality principle in sentencing, which requires that the totality of the sentence be proportionate to the gravity of the offence and the offender's circumstances.

In delivering the judgment, the court found that the primary judge had appropriately considered the child's intellectual disability and the risks associated with detention. The court noted that the child's disability meant that they were more vulnerable to exploitation by other offenders and that detention would therefore be particularly harmful. However, the court also found that the primary judge had appropriately balanced these factors against the need to protect the community and to impose a sentence that was proportionate to the gravity of the offence. The court found that the sentence imposed was appropriate and dismissed the appeal. The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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