State of Western Australia v JJS (a child)
[2004] WASCA 81
•22 APRIL 2004
STATE OF WA -v- "JJS" (A CHILD) & ORS [2004] WASCA 81
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 81 | |
| THE FULL COURT (WA) | |||
| Case No: | CCA:168/2003 | 6 FEBRUARY 2004 | |
| Coram: | MALCOLM CJ WHEELER J MCKECHNIE J | 22/04/04 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Case remitted to the President of the Children's Court for further consideration in the light of the reasons for judgment of this Court | ||
| A | |||
| PDF Version |
| Parties: | STATE OF WA "JJS" (A CHILD) "GRT" (A CHILD) "TS" "HS" "NT" "JT" |
Catchwords: | Criminal law or procedure Young offenders Compensation orders Whether compensation order can be made against an offender or responsible adult who has the means to pay Refusal of application for a compensation order in "decision as to the jurisdiction of the Court" giving rise to a right of appeal |
Legislation: | Children's Court of Western Australia Act (1989) (WA), s 41(2)(a)(f), ss 43(1), (2), (3b) Young Offenders Act (1994) (WA), s 56(1), (2), s 58(2) |
Case References: | Attorney-General v Sillem (1864) 2 H&C 431 Bond v The Queen [2000] HCA 13; (2000) 201 CLR 213 Brennan v Williams (1951) 53 WALR 30 Carter v The Queen (1994) 12 WAR 310 Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220 Davern v Messel (1984) 155 CLR 21 DJL v Central Authority (2000) 201 CLR 226 Garthwaite v Garthwaite (1964) P 356 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 Penniel v Driffill (1980) WAR 30 R v Court [2003] WASCA 308 R v Margaria [2003] WASCA 253 Reid v Howard (1995) 184 CLR 1 Reynolds v Panten (No 1) [1999] WASCA 89; (2000) 23 WAR 215 Sparks v Bellotti (1981) WAR 65 Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73 WA Pines Pty Ltd v Hamilton (1980) WAR 29 Walsh v Giumelli (1975) WAR 114 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : STATE OF WA -v- "JJS" (A CHILD) & ORS [2004] WASCA 81 CORAM : MALCOLM CJ
- WHEELER J
MCKECHNIE J
- Appellant
AND
"JJS" (A CHILD)
First Respondent
"GRT" (A CHILD)
Second Respondent
"TS"
Third Respondent
"HS"
Fourth Respondent
"NT"
Fifth Respondent
"JT"
Sixth Respondent
(Page 2)
Catchwords:
Criminal law or procedure - Young offenders - Compensation orders - Whether compensation order can be made against an offender or responsible adult who has the means to pay - Refusal of application for a compensation order in "decision as to the jurisdiction of the Court" giving rise to a right of appeal
Legislation:
Children's Court of Western Australia Act (1989) (WA), s 41(2)(a)(f), ss 43(1), (2), (3b)
Young Offenders Act (1994) (WA), s 56(1), (2), s 58(2)
Result:
Appeal allowed
Case remitted to the President of the Children's Court for further consideration in the light of the reasons for judgment of this Court
Category: A
Representation:
Counsel:
Appellant : Ms T D Sweeney & Mr S F Rafferty
First Respondent : Mr I Weldon
Second Respondent : Mr I Weldon
Third Respondent : Mr I Weldon
Fourth Respondent : Mr I Weldon
Fifth Respondent : Mr I Weldon
Sixth Respondent : Mr I Weldon
Solicitors:
Appellant : State Director of Public Prosecutions
First Respondent : McKenzie Lalor
Second Respondent : McKenzie Lalor
Third Respondent : McKenzie Lalor
Fourth Respondent : McKenzie Lalor
Fifth Respondent : McKenzie Lalor
Sixth Respondent : McKenzie Lalor
(Page 3)
Case(s) referred to in judgment(s):
Attorney-General v Sillem (1864) 2 H&C 431
Bond v The Queen [2000] HCA 13; (2000) 201 CLR 213
Brennan v Williams (1951) 53 WALR 30
Carter v The Queen (1994) 12 WAR 310
Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220
Davern v Messel (1984) 155 CLR 21
DJL v Central Authority (2000) 201 CLR 226
Garthwaite v Garthwaite (1964) P 356
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
Penniel v Driffill (1980) WAR 30
R v Court [2003] WASCA 308
R v Margaria [2003] WASCA 253
Reid v Howard (1995) 184 CLR 1
Reynolds v Panten (No 1) [1999] WASCA 89; (2000) 23 WAR 215
Sparks v Bellotti (1981) WAR 65
Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397
Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73
WA Pines Pty Ltd v Hamilton (1980) WAR 29
Walsh v Giumelli (1975) WAR 114
Case(s) also cited:
Nil
(Page 4)
1 MALCOLM CJ: This is an appeal by the State against a decision by her Honour Judge Kate O'Brien, as President of the Children's Court, on 10 October 2003 by which her Honour dismissed an application by the Crown for compensation orders in respect of offences of criminal damage by fire committed by JJS (A Child) ("JJS") and GRT (A Child) ("GRT"). The total amount sought by way of compensation in relation to three separate offences was $109,158. The compensation orders were sought in respect of two separate criminal damage by fire offences committed by both of the offenders in respect of property owned by each party that was destroyed as a result of the commission of the offences. On 10 October 2003, the learned President of the Children's Court held that, on the basis that neither offender had the necessary means to pay compensation, she did not have the power to make the compensation orders sought.
2 At the commencement of the hearing of the appeal, after considering the public interest and the interests of the two children, who are the respondents in the appeal, the Court ordered, pursuant to s 35(2) of the Childrens Court of Western Australia Act 1988 (WA) ("the Childrens Court Act"), that no person shall publish or cause to be published in any newspaper or other publication or broadcast, or cause to be broadcast by radio or television, a report of these proceedings containing any particulars or other matter likely to lead to the identification of a child concerned in these proceedings. It was made clear at the time of making that order that the effect of the order was that it included a prohibition on the publication of the names of the parents of the children involved in these proceedings.
3 The appeal comes before the Full Court pursuant to s 43(1) of the Childrens Court Act. On 10 October 2003, the learned President refused an application made by the Crown for a compensation order under s 56 of the Young Offenders Act 1994 ("the Young Offenders Act"). Although the appeal lies to the Full Court, s 43(2) of the Childrens Court Act requires that the appeal be dealt with as though it was an appeal to the Court of Criminal Appeal and subject to the provisions of Ch LXIX of the Criminal Code 1913.
4 Section 43(3b) of the Childrens Court Act provides that the term "decision" for the purposes of s 43(1) has the same meaning as in s 41(2) of the Act. Section 41(2)(a) defines "decision" as meaning, among other things, "a decision as to the jurisdiction of the Court". Section 41(2)(f) defines "decision" to include "a decision to make an order under Pt 7 of the Young Offenders Act dealing with a person for an offence (whether or not the person may thereafter be further dealt with for the offence)". In
(Page 5)
- my opinion, the result of the conferral of discretion whether or not to make a compensation order coupled with a right of appeal against a "decision" so defined, carries with it a necessary implication that a refusal to make such an order amounts to a "decision" not to exercise the jurisdiction of the Court, which is a decision as to the jurisdiction of the Court for the purposes of s 41(2)(a).
5 Section 43(2) provides that the provisions of Ch LXIX of the Criminal Code, other than ss 688, 693A and 696 apply to an appeal to the Full Court under s 43(1) and, for the purposes of such appeals, the Full Court has the powers of the Court of Criminal Appeal.
6 The appeal is brought on the following ground:
"The learned President erred in law in holding that she could not make the orders for compensation.
PARTICULARS
(a) The learned President erred in ruling that in determining whether to make an order for compensation pursuant to s 56(1) of the Young Offenders Act 1994, the court had to have consideration to the defendants' means and their ability to repay the amount ordered;
(b) The learned President further erred in ruling that if the defendants had no independent means, she had no power to grant an order for compensation;
(c) The learned President further erred in ruling that in determining the amount of compensation to be paid the court solely had to have regard to the defendants' means and their ability to repay the amount ordered;
(d) The learned President further erred in ruling that s 58(2) of the Young Offenders Act 1994 only had application if the court considered that a compensation order pursuant to s 56(1) should be made, having due regard to the considerations outlined in s 56(2)."
7 In my opinion, a decision regarding the matters which are relevant to the exercise of any particular jurisdiction of the Court is "a decision as to the jurisdiction of the Court" within the meaning of s 41(2)(a). In particular (a), the ground of appeal asserts that the President erred in law
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- in holding that she could not make an order for compensation without considering the defendants' means and their ability to pay. In other words, the jurisdiction to make the relevant order was dependent on the existence of the means to pay.
8 The position is even more clear in the case of particular (b) which refers to her Honour's ruling that, if the respondent offenders had no means to pay, she had no power, in other words, no jurisdiction to make an order for the payment of compensation by the relevant defendants.
9 Particular (c) of the grounds is also a decision as to the jurisdiction of the Court in the sense that in the exercise of the jurisdiction conferred on the Court, her Honour ruled that in determining the amount of compensation to be paid, the Court solely had to have regard to the defendants' means and their ability to repay the amount ordered. In other words, a decision how and by what criteria the jurisdiction to make an order for compensation is exercised is a "decision as to the jurisdiction of the Court".
10 As to particular (d), the contention is that the learned President erred in ruling that s 58(2) of the Young Offenders Act only had application if the Court considered that a compensation order pursuant to s 56(1) should be made. In my opinion, this is likewise a matter which involves the making of a decision "as to the exercise of jurisdiction of the Court".
11 The jurisdiction to order compensation against a juvenile or responsible adult arises out of Pt 7 of the Young Offenders Act. It follows that there is a right of appeal to the Full Court from a decision of a Judge presiding in the Children's Court in which a question of the payment of compensation is determined. In my opinion, a determination whether a compensation order should be made and, if so, for what amount, requires the making of a "decision" for the purposes of s 41(2)(f) of the Childrens Court Act. In my opinion, it is clear that the refusal to make an order for compensation was an order that finally determined an issue before the Children's Court and constituted a "decision" which is subject to appeal to this Court.
12 Section 56 in Pt 7 of the Young Offenders Act provides that:
"(1) On finding a young person guilty of an offence the Court may, subject to this section, on the application of the prosecutor made at the hearing, order that compensation be paid, or restitution be made, in respect of any damage
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- or loss occasioned by the offence to any person who has suffered that damage or loss.
- (2) The order may direct the payment of such sum as the Court thinks reasonable, either as one payment or by instalments, and in determining the amount to be paid, the Court is to have regard to the means of a person against whom the order is made and the person's ability to pay the amount ordered."
13 Section 58(2) of the Young Offenders Act provides that:
"If a young person is found guilty of an offence and a fine is imposed or the payment of compensation, restitution, or costs is ordered, the court, having regard to the financial circumstances of the young person and any person who is a responsible adult, may order that payment of the fine or other amount be made by the young person, by any person who is a responsible adult, or by any of them in such proportions as the court may determine."
14 Both of these provisions are contained in Pt 7 of the Young Offenders Act.
15 JJS was convicted of four counts of aggravated burglary of dwellings, one count of attempted aggravated burglary of a dwelling, one count of aggravated burglary on a place, two counts of stealing and two counts of criminal damage by fire or arson.
16 GRT was convicted of three counts of aggravated burglary on dwellings, one count of stealing, one count of attempted aggravated burglary of a dwelling, one count of aggravated burglary on a place, one count of possession of cannabis with intent to sell or supply and two counts of criminal damage by fire or arson.
17 So far as the arson offences were concerned, on 10 June 2003, the two boys broke into a house owned by the WA School of Mines. They trashed the interior and one of them defecated in the sink. They set fire to the house which was gutted. The two occupants of the house suffered losses in the sum of $43,548 and $50,110 respectively. The damage to the house was $200,000.
18 Between 24 and 25 June 2003, they broke into another house stealing property and trashed the house. Once again they set fire to the house. They split the proceeds. The house was gutted and had to be demolished.
(Page 8)
- The total damage was approximately $200,000. The total amount of damage caused by the various offences was $493,658.
19 In passing sentences, the learned President said:
"I turn now to a consideration of the offences. The burglary offences and the other - - the offences other than the arson offences are serious enough. They involved vandalism and the theft of goods from people who have worked hard to get them, and burglary offences are extremely prevalent. The arson offences, though, are by far the most serious offences. In assessing the seriousness I do take into account the objective seriousness of these offences as is reflected by the maximum penalty of 14 years' imprisonment. I also take into account the extent of the damage. Both houses were completely destroyed and the victims – the occupants – lost all of their personal possessions. These offences have had a profound emotional and financial effect on those who have provided the victim impact statements and who have spoken to me in court about the effects.
It's true to say that the financial detriment that these people have suffered is bad enough, but nothing can replace the memories and emotional - - sorry, the memories and the sentimental things that have been destroyed, and that is why the arson offence will have an ongoing effect on all of the victims, and there's no doubt a flow-on effect to other members of the victims' families and their friends who have had to cope with the trauma suffered by these three people.
The offences, the arson offences, can be described as a rampage of wanton vandalism. In the course of their offending the two offenders displayed total disregard for the property of others and showed no sign of stopping their behaviour before their apprehension for these offences. The arson offences cannot be described as a one-off incident or as a juvenile prank gone wrong. The first house was burned on the 10th of June. The boys knew the devastating effects of setting fire to curtains. However, they repeated their actions by burning down the second house on the 25th of June."
20 Both JJS and GRT were sentenced to a total of 21 months' detention.
(Page 9)
21 The learned Judge reserved her decision on the applications for compensation following the proceedings on 6 and 29 August 2003. In her reasons, the learned President said at pars [2] – [6]:
"Before sentence, but in the course of sentencing submissions made on 6 August 2003, the Prosecutor ("the DPP") made application on behalf of the occupants of the house for an order that compensation be paid in respect of damage and loss occasioned by the arson offences, pursuant to s 56(1) of the Young Offenders Act 1994 ("the Act"). The application was adjourned until 29 August 2003 to enable service of the application on the parents of the defendants. The matter was substantively argued on that date.
Each applicant for compensation swore an affidavit setting out details of the amounts claimed. The compensation sought is as follows:
Mr Jamie Johnson $43,548.00
Mr Darryl Horsefield $50,110.00
An application was also made by the occupant of the house the subject of charges KA 425 and 416/03. However this was for loss suffered by a person on whose behalf she was storing certain goods. The DPP withdrew this application.
The application is pursuant to s 58(1) of the Act, that relevant responsible adults, in this case the parents of the defendants, pay the compensation. The DPP concedes that the defendants do not have the means to pay.
The issues for determination are:
(1) whether the court has power to make a compensation order if a defendant has no means to pay it; and
(2) whether s 58(1) of the Act empowers the court to order a responsible adult to pay compensation if the defendant has no means to pay."
22 Her Honour then referred to the legislative history of the relevant provisions. Her Honour rejected the submission on behalf of the State Director of Public Prosecutions that, because s 56(1) made no mention of the Court having regard to the financial circumstances of the person
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- against whom an order might be made, and because s 34E of the Child Welfare Act specifically made provision for that factor, it was not a matter which the Court could take into account in exercising the discretion under s 56(1).
23 Her Honour dealt with this point in pars [26] to [28] of her reasons as follows:
"Once the discretion in s 56(1) has been triggered on application by the prosecutor, it is subject only to the provisions of s 56. The relevant parts of s 56 which impact on the exercise of the discretion are subsections (2) and (6). Subsection (6) is of no relevance in the context of the issue under present consideration as it simply empowers to the court to make an order whether or not a conviction has been recorded. The other subsections relate to whom the payment should be made (ss (3)); enforcement of orders (ss (4)); and provide that the order is not to be a bar to other proceedings (ss (5)).
In my view, ss (2) clearly governs the exercise of the discretion whether or not to make an order by directing the court to have regard to the means and the ability to pay of the person against whom the order is made. It is difficult to see how this subsection could apply in any other circumstances.
Most young offenders have no independent means. If they are in receipt of a youth allowance or other social security payment, it is generally only enough for a hand to mouth existence. In those circumstances, if the court could not take into account the means and ability to pay of the young offenders in determining whether to make the order and made the order regardless of the means and ability to pay, the order would be meaningless. This would be so notwithstanding the enforcement provisions outlined in s 56(4). It might be that at some time in the future the young person makes good and could satisfy a judgment made pursuant to s 56(4). However, to make an order on the off chance that that situation might occur would be contrary to the general principle of juvenile justice that 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 (s 8(k))."
(Page 11)
24 In my opinion, with respect, her Honour was correct. Her Honour's conclusions regarding the relationship between ss 56 and 58 of the Young Offenders Act were as follows at pars [31] – [34] of her reasons:
"The court first exercises its discretion whether or not to make a compensation order pursuant to s 56(1), subject to the provisions of s 56. In so doing, the court is required to consider the defendant's financial means and ability to pay the compensation order (s 56(2)).
Section 58(1) comes into operation only if the court decides to make the order. Then the court may order that payment of the compensation be made by the young person, by a responsible adult or by any of them in such proportions as the court may determine.
If an order pursuant to s 58(1) is appropriate, a court may make an order that a responsible adult pay whole or part of the compensation. This might occur to ensure that payment of the compensation is not unduly delayed, for example, because [sic of] the young person's financial position. It is also consistent with the role of responsible adults as outlined in s 8(a) and (b) of the Act. These paragraphs must be read in conjunction with s 8(d) which provides that 'in determining the degree of responsibility expected of a responsible adult the age, intellectual and emotional maturity of the young person and the fact that the young person is in employment or is living independently shall be taken into account'. The court might decide that a responsible adult should pay the whole amount of compensation or part thereof so that the adult sets a proper example to the young offender. The provisions of s 8 are statements of principle and should not be construed to operate as a basis for punishing 'responsible adults'. In some situations, it may be that they have the effect of driving home their responsibilities to them. The provisions of s 58(2) seem to apply equally to those responsible adults who may have encouraged or promoted the offence by neglect of the child or otherwise and to those who have not done so. That is the significant difference between the provisions of s 56 of the Act and s 34E of the [Child Welfare Act] prior to the 1993 amendments."
(Page 12)
25 In my opinion, where a defendant child does not have the means or ability to pay a compensation order, that does not exclude the making of a compensation order against a responsible adult under s 58(2) of the Young Offenders Act, having regard to the means of the person against whom the order is made and the person's ability to pay the amount ordered under s 56(2). The position is similar under s 58(2), in relation to an order under that subsection against a responsible adult.
26 In my opinion, it would be a relevant consideration in deciding whether or not to make an order against a responsible adult whether or not he or she had either by his or her actions, or failure to act, contributed in any significant way to the commission of the offence. In the present case, the victims of the fires filed affidavits seeking compensation in the amounts to which I have earlier referred. At this stage, the relevant responsible adults have not as yet filed affidavits. This was because the argument before the learned President and consequently her reasons were limited to the point of law raised by the appeal and the matter has yet to be considered on the merits.
27 In my opinion, it is important to make it clear that it is a relevant consideration in proceedings involving an issue of compensation whether and to what extent there has been a failure of parental supervision and control on the part of the parents, or other persons in the position of a "responsible adult" for the purposes of s 58 of the Young Offenders Act.
28 Given the removal of the requirement for proof of "conducement" on the part of the parents in the former s 34E of the Child Welfare Act and the absence of any similar provision in the Young Offenders Act, it is implicit in ss 56 and 58 that the discretion to make an order for the payment of compensation, or making restitution in respect of any damage or loss occasioned by the victim of an offence, must necessarily be one which is made taking into account all the circumstances of the case, including the means of the person against whom the order is made and the person's ability to pay the amount ordered. In some cases, it may be relevant to consider whether and to what extent a "responsible adult" caused or contributed to the offence by his or her actions or neglect, whether by a failure to supervise or control the conduct of the young offender or otherwise. In this respect, it is important to note that an order to pay compensation cannot be made without first giving the responsible adult an opportunity of being heard.
29 There was some discussion at the hearing of this appeal of the question whether a responsible adult is given a right of appeal against an
(Page 13)
- order for compensation made against that person. Where the decision is made by the Children's Court constituted by a Judge, an appeal lies to the Full Court pursuant to s 43(1) of the Childrens Court Act against a "decision" of the Judge. By s 43(3b), "decision" in s 43(1) has the same definition as in s 41(2) which includes:
"(f) a decision to make an order under Pt 7 of the Young Offenders Act 1994 dealing with a person for an offence (whether or not the person may thereafter be further dealt with for the offence); and
(h) a penalty imposed or order made consequent on any such decision, conviction, finding, acquittal or dismissal."
31 An alternative way of looking at the question of the scope of the right of appeal is to take the view that a refusal to make an order is as much a decision as a decision to make an order. Counsel for the respondent expressly disavowed any intention to argue that s 41(2)(f) could only apply when an order was made. In my view, it would be desirable to clarify the provision by amendment of the Act. Alternatively, it would be possible to argue that the making of an order for compensation is a penalty imposed or order made consequent on conviction under s 41(2)(h). An order dismissing an application for compensation would also appear to fall within s 41(2)(f).
32 One difficulty with her Honour's reasons, with respect, is that while her Honour referred to the factors which might be relevant to the exercise of discretion, there does not appear to have been material put before her Honour relevant to those factors, so that there was direct evidence of those matters which were relevant to the exercise of the discretion, including the role and responsibility of the parents of the offenders as responsible adults, their financial means and other relevant matters. While there were submissions, there was little or no evidence regarding such matters. The submissions made to her Honour went more to the
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- question of sentencing the two offenders and only indirectly touched on the roles and responsibility of the respective parents.
33 The discretion in relation to compensation, like any other judicial discretion, is required to be exercised judicially and in accordance with established principles of sentencing in the context of juvenile justice, taking into account the means and ability of the persons concerned to pay. To the extent that the Young Offenders Act is silent on an aspect of sentencing, such as whether a compensation order is a penalty, s 46A(1)(c) of that Act provides that the Sentencing Act 1995 applies to and in respect of a young person, "subject to subsection (2), to the extent that this Act does not provide for a matter that is provided for in the Sentencing Act 1995."
34 Section 110 of the Sentencing Act sets out the principles applicable to the making of both a compensation order and a reparation order. Section 112 makes provision for taking evidence about particular matters and taking into account, for example, any pre-sentence report, victim impact statement or mediation report given to the Court.
35 Other potentially relevant provisions are contained in Pt 16 of the Sentencing Act which deals with "reparation" orders. A reparation order means a compensation order or reparation order under the Sentencing Act.
36 After the imposition of sentences, the learned President adjourned the hearing of the application to make a compensation order on the basis that, if she decided to make a compensation order, she would cause the relevant notices to attend Court to be issued and made some directions in relation to the issue of means.
37 The provisions for compensation in the Young Offenders Act find their origin in the former s 34E of the Child Welfare Act 1947 ("the Child Welfare Act"). The former s 34E provided that:
"Where a child is found guilty of an offence with respect to which a fine a imposed on the child or payment of compensation, costs or restitution is ordered, the Court on being satisfied that any parent or guardian of the child has conduced to the commission of the offence by neglecting to exercise due care or control of the child and having regard to the financial circumstances of the child and the parent or guardian, shall order that the fine or compensation, costs or restitution be paid –
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- (a) by the child; or
(b) by the parent or guardian; or
(c) by both the child and the parent or guardian, in such proportions as the Court may determine; or
(d) by the child, but subject to the condition that in default of payment by the child, the fine, compensation, costs or restitution shall be paid by the parent or guardian of the child."
"… will give the court the power to fine or order compensation, restitution or costs against the parent or guardian of a child offender without having to make such a finding against the parent."
39 The Attorney General also said that:
"The Government's intention is that this amendment be applied more rigorously the younger the child. It is a community expectation that children be in the proper care and under the proper control of a parent or guardian." See: Western Australian Parliamentary Debates Hansard, Vol 307, 1993-1994, pp 5417 – 5418."
40 Section 34E was later repealed by s 209 of the Young Offenders Act 1994.
(Page 16)
41 In my opinion, on the face of it, the provision in s 56(1) of the Young Offenders Act that an order that compensation be paid may be made is "subject to this section" requires the Court "to have regard to the means of the person against whom the order is made and the person's ability to pay the amount ordered". It would seem to follow that the discretion to make the order must be exercised having regard to the means and ability to pay of the person against whom the order is to be made. Counsel for the State contended that the provision was open to a different interpretation, namely, to decide that although the case was one in which it would be appropriate to make an order, but, having regard to the means to pay, order that the amount to be paid be nil. Counsel agreed, however, that it would be a pointless exercise to apply s 56(1) in that way.
42 The submission on behalf of the State was that there is a distinction between s 56(1) and s 56(2). Section 56(2) is not relevant to the young person specifically, but to the means of the person against whom the order is made. The State's position was that under s 56(2), the Court is to have regard to the means of the person against whom the order is made whether or not the young person has the means. In other words, in the application of s 56(2), the Court is to have regard to the means of the person against whom the order is made, whether that be the young person or the responsible adult.
43 This submission is quite different from the submission made on behalf of the State when the matter was before the learned President. At that time, the contention on behalf of the State was that the determination whether a compensation order should be made under s 56 should be considered without regard to the financial circumstances of either the young person or the responsible adult, because the amount, if any, was to be determined having regard to the means and ability to pay of the person the subject of the order. In other words, s 56(2) qualifies s 56(1) to the extent that the Court is to have regard to the financial means of the category of persons to whom the order may apply. This was clearly a departure from the interpretation of the provision which was adopted when the case was before the Children's Court.
44 In the end result, it was accepted by counsel for the State that s 56(1) of the Young Offenders Act confers a discretion on the Court called upon to consider the making of a compensation or restitution order. There are various factors which the Court is entitled to take into account in the exercise of that discretion, including the matters referred to in s 56(2). It was conceded that the discretion could be exercised in such a way that a compensation order could be made, but taking into account the very
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- modest ability of the young person and/or the responsible adult or adults, an order could be made in an amount which would achieve some recognition by ordering the payment of an amount of compensation which did not or could not reflect the amount of loss occasioned. In other words, the amount of compensation would reflect the capacity or means to pay of the person against whom the order is made.
45 In my opinion, the evident purpose of s 58(2) is to apply to the situation where the young person has not the means to pay a fine, compensation, restitution or costs. That may provide a reason for the court to order that, having regard to the financial circumstances of the young person and any responsible adult, that payment be made by the young person, a responsible adult or by any of them in such proportions as the Court may determine. In such circumstances, s 56(2) and s 58(2) work together. It would be open to the Court to decide not to make a compensation order against a young offender, but make such an order against a responsible adult under s 58, having regard to the means to pay.
46 It follows, in my opinion, that whether or not a compensation order is made against a child, it is open to the Court to make a compensation order against a responsible adult, having regard to the financial circumstances of that adult. Whenever a compensation order is sought against a person, there is a discretion to be examined having regard to the means and ability to pay of that person. In my view, the discretion does not extend to the making of a compensation order against a child defendant if he or she has no means to pay. I consider this is also the position in the case of a responsible adult. I do not consider that there is power to make a compensation order against a child or a responsible adult for a nil amount. The reason for that is that zero or nil is not "compensation" which can be "paid" or made the subject of "restitution" within the meaning of s 56(1). Likewise, s 56(2) contemplates the payment of such "sum as the Court thinks reasonable". In my opinion, neither nil or zero is a "sum", because it is nothing.
47 In my opinion, where the young person found guilty of an offence has no means to pay compensation, it is open to the Children's Court, having regard to the means of a responsible adult and his or her ability to pay, to make a compensation order against that adult, having regard to his or her means and ability to pay the amount concerned.
48 For these reasons, in my opinion, the appeal should be allowed to the extent that particular (a) of the grounds of appeal has been made out. Particular (b) has also been made out. It follows from my reasons that if
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an order cannot be made against the defendants because they did not have any means to pay, it would be open to the Court to order a responsible adult or responsible adults to pay compensation having regard to their means and ability to pay the amount ordered.
49 In my opinion, ground (c) has been made out to the extent that the nature of the offence and any circumstances of mitigation may be relevant to determining the amount of any compensation, including any conduct on the part of the victim of the relevant offence.
50 It is important to bear in mind that while s 58(2) provides that if a young person is found guilty of an offence and compensation is ordered, the Court, having regard to the financial circumstances of the young person and any person who is a responsible adult, may order payment of the compensation, by any person who is a responsible adult, or by any of them in such proportions as the Court may determine.
51 It follows that the appeal should be allowed and an order made remitting the case to the learned President for further consideration in the light of the reasons for judgment of this Court.
52 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Malcolm CJ. His Honour has set out the background to the appeal, and the grounds of appeal, relieving me of the need to do so.
53 There are essentially two issues in the appeal. The first is the question of whether an appeal lies to this Court from the decision made by the President, and the second, assuming that an appeal does lie, concerns the correctness of the decision which her Honour made.
54 So far as the first issue is concerned, I agree with the Chief Justice that the appeal is competent as falling within s 41(2)(a) of the Childrens Court of Western Australia Act 1988. Her Honour formulated the issues which she had to decide as:
"(1) Whether the Court has power to make a compensation order if a defendant has no means to pay it; and
(2) Whether s 58(1) of the Act empowers the Court to order a responsible adult to pay compensation if the defendant has no means to pay."
55 Each of those questions puts in issue the jurisdiction of the Court to make orders in certain circumstances, so that if either question is
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answered in the negative, the Court may not consider whether such an order should be made. A decision in respect of each of those issues is therefore "a decision as to the jurisdiction of the Court".
56 In relation to the second issue, I am broadly in agreement with the reasons of the Chief Justice. However, I wish to set out briefly my own reasons for reaching that conclusion.
57 It should first be noted that the argument of the appellant before us was not the same as the argument which was apparently made by the State to her Honour, the President. Indeed, with respect to those who put the argument in the Children's Court, it is difficult to ascertain precisely what view was being urged upon her Honour.
58 A good deal of the argument in that Court seems to have been devoted to the fact that the legislature had removed the provision existing in the former s 34E of the Child Welfare Act 1947, which required proof that a parent had "conduced" to a child's offending before orders could be made against the parent. The argument tended to suggest that the legislature had intended to hold parents or responsible adults accountable financially for the offending of children, whatever the conduct of the responsible adult might have been. Because that was an issue which featured prominently in the argument before her Honour, and because it is plainly an issue relevant to the exercise of the discretion pursuant to s 56 and s 58 of the Young Offenders Act 1994 ("the Act"), I propose to make some brief observations about it shortly. However, for the moment I observe only that it is difficult to see why those issues were canvassed before her Honour, when on any view they were relevant to the question of whether a discretion to order payment against a responsible adult should be exercised, rather than to the preliminary issue which her Honour had identified as to whether she had power, in the circumstances of the present case, to make such an order.
59 Before turning to her Honour's reasons, it is convenient to set out the relevant provisions of s 56 and s 58 of the Act, with which she was concerned.
60 Section 56 and s 58 relevantly provide:-
"56. Compensation and restitution, orders for
(1) On finding a young person guilty of an offence the court may, subject to this section, on the application of the prosecutor made at the hearing,
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- order that compensation be paid, or restitution be made, in respect of any damage or loss occasioned by the offence to any person who has suffered that damage or loss.
- (2) The order may direct the payment of such sum as the court thinks reasonable, either as one payment or by instalments, and in determining the amount to be paid, the court is to have regard to the means of the person against whom the order is made and the person's ability to pay the amount ordered. (emphasis supplied)
…
- 58. Responsible adult may be made liable for fine etc.
(1) In this section 'responsible adult' does not include an exempt responsible adult.
(2) If a young person is found guilty of an offence and a fine is imposed or the payment of compensation, restitution, or costs is ordered, the court, having regard to the financial circumstances of the young person and any person who is a responsible adult, may order that payment of the fine or other amount be made by the young person, by any person who is a responsible adult, or by any of them in such proportions as the court may determine.
(3) An order for any payment by the young person may be accompanied by an order that, in default of payment by the young person, the payment be made by a person specified in the order who is a responsible adult."
"The court first exercises its discretion whether or not to make a compensation order pursuant to s 56(1), subject to the provisions of s 56. In so doing, the court is required to consider
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- the defendant's financial means and ability to pay the compensation order (s 56(2)).
Section 58(1) comes into operation only if the court decides to make the order. Then the court may order that payment of the compensation be made by the young person, by a responsible adult or by any of them in such proportions as the court may determine." (emphasis supplied)
62 In my view, the error which her Honour made is to be found in the italicised words in the passage from her reasons which I have set out. It is to be noted that s 56(1) merely provides that the court may order that "compensation be paid": it does not specify by whom the compensation is to be paid. One turns to s 58(2) in order to find the persons against whom an order may be made. The persons against whom an order may be made are the young person and any person who is a responsible adult. Returning then to s 56(2) the court is to have regard to the means of the person against whom the order is made.
63 Her Honour has apparently read s 56(2) as requiring her to have regard only to the means of the defendant – that is, the young person. However, it is clear, reading s 56 and s 58 together, that the person against whom the order is made may be the young person, one or more responsible adults, or any of them, in any proportions. Those sections require the court to consider whether it may be appropriate to make an order against the young person, or against some responsible adult, or both; then to consider the means of those persons; and then to make the order if, having considered the means of those persons and other relevant factors, the court still considers it appropriate to do so.
64 In my view, when one reads s 56 and s 58 together, their terms compel the conclusion that the learned President did err in ruling that if a defendant had no independent means, she lacked power to make an order for compensation. Ground (b) of the Grounds of Appeal is made out, as is the related ground (c). I am not sure whether ground (d) is repeating essentially the same point, or raising some other issue. However, it seems to me that the observations which I have made are sufficient to dispose of the appeal.
65 As I have noted, the question of the relevance of the conduct of the responsible adults was, for some reason which is not entirely clear, canvassed at some length before her Honour. It is only of peripheral relevance to the present appeal. However, because that issue must
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inevitably be raised in any further determination of this matter when it is remitted to the Children's Court, I would make the following brief observations. Sections 7 and 8 of the Act set out both general principles of juvenile justice and particular principles in relation to the role of responsible adults. Section 7(f) provides that 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". Section 7(l) refers to the need to consider the age and maturity of the offender; s7(m) refers to the need to foster the ability of families to "develop their own means of dealing with offending by their young persons"; while s 8(d) provides, unsurprisingly, that in determining the degree of responsibility expected of a responsible adult the age, intellectual and emotional maturity of the young person, and the fact that the young person is in employment or is living independently, are to be taken into account.
66 All of these provisions compel the conclusion that the conduct of responsible adults, and their practical ability to supervise and guide young offenders, are considerations relevant to the exercise of discretions under the Act generally. It would hardly encourage responsible adults to fulfil their responsibilities, or support their efforts in doing so, if compensation were to be awarded without any examination of whether or not the responsible adults had attempted to fulfil their responsibilities. It would appear to me that the Act must contemplate that responsible adults are to be supported by recognising whatever efforts they have made to attempt to guide and supervise young offenders, by recognising what practical obstacles may exist to such guidance and support, and by adjusting compensation which might be awarded so as to recognise those matters.
Conclusion
67 In my view this appeal should be allowed, and an order made remitting the case to the learned President for further consideration according to law.
68 MCKECHNIE J: On 29 August 2003 "JJS" and "GRT" were sentenced by the President of the Children's Court to terms of detention for a number of offences including aggravated burglary in a dwelling house and criminal damage by fire. Each of the young offenders was 15 years old.
69 Before sentence, but in the course of sentencing submissions, the prosecutor made application for a compensation order: Young Offenders Act 1994 s 56(1). The total amount of compensation claimed was $93,658. The application was served on the parents of the offenders as persons who were relevantly a "Responsible adult [who] may be made
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liable…": Young Offenders Act s 58(1). It was conceded before the President that the young offenders did not have the means to pay any compensation order.
70 As a preliminary issue the President heard argument and then considered:
"(1) whether the court has power to make a compensation order if a defendant has no means to pay it; and
(2) whether s 58(1) of the Act empowers the court to order a responsible adult to pay compensation if the defendant has no means to pay."
71 The President expressly did not exercise her discretion whether to make a compensation order. She said:
"If I decide to make a compensation order, I will cause the relevant notices to attend court to be issued and make some directions in relation to the issue of means."
72 I mention this because the respondents suggested that were we otherwise minded to allow the appeal, this Court could nevertheless resolve the issue and exercise the discretion for itself. In the circumstances I have outlined that would not be possible.
73 The President held that where young offenders are children who have no independent means there is no power to grant the application for compensation.
74 The prosecution appeals from the decision on grounds as follows:
"1. The learned President erred in law in holding that she could not make the orders for compensation.
PARTICULARS
- (a) The learned President erred in ruling that in determining whether to make an order for compensation pursuant to s.56(1) of the Young Offenders Act 1994, the court had to have consideration to the defendant's means and their ability to repay the amount ordered;
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- (b) The learned President further erred in ruling that if the defendants had no independent means, she had no power to grant an order for compensation;
(c) The learned President further erred in ruling that in determining the amount of compensation to be paid the court solely had to have regard to the defendant's means and their ability to repay the amount ordered;
(d) The learned President further erred in ruling that s.58(2) of the Young Offenders Act 1994 only had application if the court considered that a compensation order pursuant to s.56(1) should be made, having due regard to the considerations outlined in s.56(2)."
The right of the prosecution to appeal
75 Ms Sweeney, who appeared for the prosecution, properly raised the right of appeal as an issue.
76 Appeals are dealt with in the Children's Court of Western Australia Act 1988 Pt 5 entitled "Review and Appeal". An appeal lies from a decision of a Judge of the Children's Court to the Full Court which may exercise various powers given to the Court of Criminal Appeal under the Criminal Code: Children's Court Act s 41(1), s 41(2). "Decision" is defined relevantly as:
"(a) a decision as to the jurisdiction of the court.
…
(f) a decision to make an order under Part 7 of the Young Offenders Act 1994 dealing with a person for an offence (whether or not the person may thereafter be further dealt with for the offence);
…
(h) a penalty imposed or order made consequent on any such decision, conviction, finding, acquittal, or dismissal; … s 43(3)(b); s 41(2)(f), s 41(2)(h).
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77 Section 43(1) of the Children's Court of Western Australia Act provides:
"Subject to this section, an appeal lies from a decision of the Court, when constituted by or so as to include a Judge, to the Full Court."
78 In Bond v The Queen [2000] HCA 13; (2000) 201 CLR 213 the Court, in the course of rejecting the Commonwealth DPP's right to appeal against a sentence imposed for an offence under the Companies Code, said at 29:
"… '[A] convicted person should not be deprived of the liberty left after sentencing at first instance except by procedures which have been expressly authorised and strictly complied with in a court of proper jurisdiction.' " (Byrnes v The Queen (1999) 199 CLR 1)
79 In Davern v Messel (1984) 155 CLR 21 a question which arose was whether s 24(1) and s 28(1) of the Federal Court of Australia Act 1976 (Cth) conferred upon the Full Court of the Federal Court power to hear and determine an appeal by the Crown from a decision given by the Supreme Court of a Territory quashing a conviction on an appeal by an accused. Gibbs CJ at 30 said:
"When the prosecution seeks to appeal from an acquittal, the rule against double jeopardy has an indirect application. An appeal is a remedy given by statute; the scope of the appeal must be governed by the terms of the enactment creating it: Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220."
80 At 32 he continued:
"Notwithstanding these decisions, there is, in my opinion, no sufficient reason to question the rule, laid down in Benson v Northern Ireland Road Transport Board, that a statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly. It is a rule to which it may be assumed the parliamentary draftsmen have had regard in framing legislation enacted since that time."
81 Gibbs CJ declined to read s 28 of the Federal Court of Australia Act1976 which stated that the Court had power:
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- "(e) set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered;"
- in a way which would allow the entry of a verdict of guilty.
82 Davern v Messel concerned a prospective appeal against a jury's verdict of acquittal. Gibbs CJ distinguished that position from a court of summary jurisdiction at 37:
"A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as the verdict of a jury. The consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct that the defendant be convicted."
83 Mason and Brennan JJ, in a joint judgment, applied with approval the decision in Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 and the judgment of Deane J at 413:
"'The right of the subject which finds expression in that principle, namely, the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction, is not, upon proper principles of statutory interpretation, to be swept aside by the general terms of a statute which has no underlying policy requiring that such terms be given such an effect and which contains nothing that points clearly or unmistakably or, indeed, at all, to that effect as having been either contemplated or intended.' "
84 After an extensive review of the authorities their Honours concluded at 52:
"The Australian cases indicate that our courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings. There has been less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment, for the very good reason that a jury
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- verdict of not guilty has been traditionally regarded as inviolate."
85 It is trite to say that an appeal is a creature of statute and that it is necessary to produce statutory authority for the right to an appeal: Attorney-General v Sillem (1864) 2 H&C 431 at 608 - 609 per Willes J; Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73 per Dixon J at 108. The scope and effect of an appeal must be governed by the terms of the enactment creating it: Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220. Reference should also be made to R v Margaria [2003] WASCA 253 and the observations by way of obiter dicta of EM Heenan J from [10(ff)].
86 Drawing these principles together, I conclude that a party seeking to invoke the jurisdiction of the Full Court on appeal must be able to point to a distinct head of statutory power for that appeal. In Carter v The Queen (1994) 12 WAR 310 the appellant sought an order for a separate trial from the other co-accused. The trial Judge refused the application. The appellant appealed to the Full Court. Malcolm CJ (Ipp and Scott JJ agreeing), after noting that the Criminal Code confers no right of appeal against dismissal of an application for a separate trial, and it was therefore conceded that the appeal could not be brought before the Court of Criminal Appeal, dealt with the submission that the Supreme Court Act s 58(1)(b) confers jurisdiction on the Court. At 314 Malcolm CJ held that Parliament did not, by the Supreme Court Act: s 58, intend there to be a general right of appeal to the Full Court. Whereas in Carter there are particular provisions which relate to the right of appeal, the general provisions the Supreme Court Act: s 58 cannot be relied upon.
87 Clear and distinct words must be found in order to grant the prosecution the power to appeal from a jury verdict, or to give the Court jurisdiction to hear the appeal, although an appeal from a decision of law, or a decision which does not involve an acquittal by jury, is not subject to the same rigor of textual precision in the instrument creating the appeal, it is permissible to examine Parliament's general intention.
88 The jurisdiction of the Full Court to hear the appeal is invoked if there is an appeal from a "decision". The definition under Children's Court of Western Australia Act s 43 uses the definition also common for appeals from decisions under the Justices Act. In Brennan v Williams (1951) 53 WALR 30 per Dwyer CJ:
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- "…It is my view that a decision appealed from must be a decision as defined by the Justices Act, and the wording of the definition does not extend to what is a ruling given by a magistrate on an incidental question whether certain pleas are good or bad. The magistrate should proceed to a decision on the whole case; that is the decision which is subject to review under the Justices Act;"
89 In WA Pines Pty Ltd v Hamilton (1980) WAR 29 a finding that there was a case to answer was not a "decision" within the meaning of the Justices Act because it did not come within the definition provided by s 4.
90 In Reynolds v Panten (No 1) [1999] WASCA 89; (2000) 23 WAR 215, Steytler J conducted a detailed examination of the legislative history of s 4 of the Justices Act and the authorities referring inter alia to Brennan v Williams, Penniel v Driffill (1980) WAR 30and WA Pines Pty Ltd v Hamilton. Steytler J held that a decision not to grant a suppression order was not a "decision" within s 4 of the Justices Act.
91 Both Malcolm CJ and Wheeler J, for essentially similar reasons, would hold that the appeal is competent as falling within the Children's Court of Western Australia Act 1988: s 41(2)(a). No argument was addressed to the Court in respect of s 41(2)(a); argument was only addressed on s 41(2)(f).
92 Lacking the benefit of submissions on the point, I nevertheless find myself in respectful disagreement with Malcolm CJ and Wheeler J.
93 The Children's Court of Western Australia Act Pt 3 is entitled "Jurisdiction of the Court". The sections contained in Pt 3 enumerate the criminal and non-criminal jurisdiction of the Children's Court and the limitations of jurisdiction. The Children's Court jurisdiction is not easily categorised within the hierarchy of Courts defined by limits of penalty or monetary amounts. Instead it has a wide, sometimes exclusive, jurisdiction generally defined by subject matter; that is, proceedings in respect of a child.
94 It is easy to see how issues as to jurisdiction will often arise. The most obvious issue may be whether a particular person is in fact a child but other jurisdictional issues arise. In my opinion s 41(2)(a) is no more than a reference to decisions about jurisdiction which have arisen under Pt 3.
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95 There is a difference between the jurisdiction of a court and the power which a court may exercise. The difference is best illustrated by reference to cases about the inherent jurisdiction of courts. In Garthwaite v Garthwaite (1964) P 356, Diplock LJ defined "jurisdiction" at 387:
"In its narrow and strict sense, the 'jurisdiction' of a validly constituted court connotes the limits which are imposed on its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue, or (2) to the persons between whom the issue is joined, or (3) to the kind of relief sought, or any combination of these factors."
96 Diplock LJ then explained how the wider sense of "jurisdiction" embraced the settled practice of the Court as to the way in which it will exercise its power to hear and determine issues which fall within its "jurisdiction" (in the strict sense).
97 In Walsh v Giumelli (1975) WAR 114 at 116 the differentiation between jurisdiction and power was central to the decision of this Court:
"The general jurisdiction, powers and authority of magistrates or justices sitting in Petty Sessions in this State for the hearing and determination of complaints of simple offences is to be found in the Justices Act 1902-1972. Further powers and jurisdiction have been conferred by other statute, notably the Criminal Code and the Police Act."
98 So also in Sparks v Bellotti (1981) WAR 65, Wickham J, after reference to Walsh v Giumelli, continued:
"The distinction made by Bentham and others between adjectival law and substantive law, although not always useful, is of assistance when considering the powers and duties of a court of limited jurisdiction. The jurisdiction of a court to hear and determine in respect to subject matter, parties and territorial limits, and in respect to the substantive law to be applied, is to be distinguished from the manner in which that jurisdiction may be exercised."
99 The distinction between "jurisdiction" and "power" has been, on the whole, maintained by the High Court: Reid v Howard (1995) 184 CLR 1 at 16; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 451.
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100 In DJL v Central Authority (2000) 201 CLR 226, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in a joint judgment concerning the powers of the Family Court held at 241 [27]:
"… the circumstance that a federal court exercises the judicial power of the Commonwealth is significant. The exercise of that authority has, as incidents arising by necessary implication from Ch III, the power to punish for contempt and the power to preserve the subject matter of a pending application for special leave to appeal. However, the powers conferred upon the Family Court by statute may be exercised only within the range of jurisdiction conferred upon it by laws made by the Parliament under s 77 of the Constitution."
101 To return to the present case, the President undoubtedly had jurisdiction to deal with the matter because the young offenders were under the age of 18.
102 The Court found as a fact - accepted on all sides - that the young offenders had no means to pay a compensation order. The question then arose as to whether, in the light of that fact, the Court's powers under s 56 or s 58 could be invoked.
103 I would not categorise the President's decision as a decision as to the jurisdiction of the Court but as a decision within jurisdiction. It is a decision about the application of the Young Offenders Act to the particular factual issue. It follows that I do not consider s 41(2)(a) has any application.
104 A compensation order under s 56 is a matter within Pt 7 of the Young Offenders Act. If an order is made, there is a right to appeal. In the present case, there has been no decision to make an order and it follows no "order made consequent on any such decision".
105 I am unable to discern a legislative intention to grant the prosecution a right of appeal against the refusal to make an order under Pt 7 of the Young Offenders Act 1994. This may be compared with R v Court [2003] WASCA 308 at [89]. In Court, the parliamentary intention was clear and obvious. I do not read the plain words of the Children's Court of Western Australia Act as extending the jurisdiction of this Court to entertain an appeal when the Court declines to make an order under Pt 7 of the Young Offenders Act. The appeal is incompetent.
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106 As Malcolm CJ and Wheeler J have a different view, I turn to consider the merits of the appeal. The power to make a compensation order in respect of a young offender arises under s 56(1) and s 56(2) of the Young Offenders Act 1994:
"(1) On finding a young person guilty of an offence the court may, subject to this section, on the application of the prosecutor made at the hearing, order that compensation be paid, or restitution be made, in respect of any damage or loss occasioned by the offence to any person who has suffered that damage or loss.
(2) The order may direct the payment of such sum as the court thinks reasonable, either as one payment or by instalments, and in determining the amount to be paid, the court is to have regard to the means of the person against whom the order is made and the person's ability to pay the amount ordered."
107 In certain circumstances a "responsible adult" may be made liable to pay compensation. Section 58 of the Young Offenders Act provides:
"58. Responsible adult may be made liable for fine etc.
(1) In this section 'responsible adult' does not include an exempt responsible adult.
(2) If a young person is found guilty of an offence and a fine is imposed or the payment of compensation, restitution, or costs is ordered, the court, having regard to the financial circumstances of the young person and any person who is a responsible adult, may order that payment of the fine or other amount be made by the young person, by any person who is a responsible adult, or by any of them in such proportions as the court may determine.
(3) An order for any payment by the young person may be accompanied by an order that, in default of payment by the young person, the payment be made by a person specified in the order who is a responsible adult."
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108 The President construed the relationship between s 56 and s 58 of the Young Offenders Act as follows:
"31. The court first exercises its discretion whether or not to make a compensation order pursuant to s 56(1), subject to the provisions of s 56. In so doing, the court is required to consider the defendant's financial means and ability to pay the compensation order (s 56(2)).
32. Section 58(1) comes into operation only if the court decides to make the order. Then the court may order that payment of the compensation be made by the young person, by a responsible adult or by any of them in such proportions as the court may determine.
33. If an order pursuant to s 58(1) is appropriate, a court may make an order that a responsible adult pay whole or part of the compensation. This might occur to ensure that payment of the compensation is not unduly delayed, for example, because [of] the young person's financial position. It is also consistent with the role of responsible adults as outlined in s 8(a) and (b) of the Act. These paragraphs must be read in conjunction with s 8(d) which provides that 'in determining the degree of responsibility expected of a responsible adult the age, intellectual and emotional maturity of the young person and the fact that the young person is in employment or is living independently shall be taken into account'. The court might decide that a responsible adult should pay the whole amount of compensation or part thereof so that the adult sets a proper example to the young offender. The provisions of s 8 are statements of principle and should not be construed to operate as a basis for punishing 'responsible adults'. In some situations, it may be that they have the effect of driving home their responsibilities to them. The provisions of s 58(2) seem to apply equally to those responsible adults who may have encouraged or promoted the offence by neglect of the child or otherwise and to those who have not done so. That is the significant difference between the provisions of s 56 of the Act and s 34E of the CWA prior to the 1993 amendments."
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109 Ms Sweeney argues that when interpreting the provisions, the Court should have regard to the intent of the legislature as revealed in the legislation and in the case of ambiguity may consider the intent of Parliament. She refers to the Attorney-General's second reading speech in 1994 and argues that the President's interpretation severely restricts the use of s 56 and s 58 of the Young Offenders Act. That is so, although, as Ms Sweeney conceded, there is still a basis for the provisions to operate, albeit in a restricted way.
110 In my opinion, the construction of the relevant sections by the President was open. I also reach the same conclusion for slightly different reasons. Section 56(2) of the Young Offenders Act is open to the interpretation that the word "person" is intended to apply to any person against whom an order is made; that is, a young offender or a responsible adult. This is the interpretation submitted by the prosecution.
111 On the other hand, s 58(2) of the Young Offenders Act can be read as applying three conditions before the discretion to order compensation be paid by a "responsible adult" is enlivened. Those three conditions are:
• A young person is found guilty of an offence; and
• A fine is imposed or the payment of compensation, restitution or costs is ordered;
• The Court, having regard to the financial circumstances of the young person and any person who is a responsible adult, may order that payment of the fine or other amount be made by the young person, by any person who is a responsible adult, or by any of them in such proportions as the court may determine.
112 On this construction, if no order for payment of compensation by the young offender is made, there can be no order made against a "responsible adult".
113 Section 58 of the Young Offenders Act is punitive and fiscal in nature because it has the potential to impose a financial impost against a person who is innocent of any offence. The person is liable to pay because of their relationship with an offender by being either the parent, guardian or other person having responsibility for the day-to-day care of a young person.
114 If Parliament wishes to extend such a burden to innocent parties it must do so in clear and unambiguous language. In the case of an ambiguity, a construction which favours the liberty or, in this case, the
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- financial liberty of the subject, should be preferred. The provisions of s 56 and s 58 of the Young Offenders Act are ambiguous. I would adopt the second construction I have outlined with the result that the adult respondents have no liability to pay compensation. Even if the appeal were competent I would dismiss the appeal.
0
17
2