The State of Western Australia v A Child
[2007] WASCA 115
•29 MAY 2007
THE STATE OF WESTERN AUSTRALIA -v- "A CHILD" [2007] WASCA 115
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 115 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:18/2007 | 18 MAY 2007 | |
| Coram: | STEYTLER P McLURE JA MILLER AJA | 29/05/07 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA "A CHILD" |
Catchwords: | Criminal law State appeal against sentence Indecent dealing and sexual penetration Child complainant and accused Approach to sentencing young offenders Whether 18 month intensive youth supervision order manifestly inadequate Turns on own facts |
Legislation: | Criminal Code (WA), s 320 Young Offenders Act 1994 (WA) |
Case References: | "K" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 960523 "KSB" (A Child) v The State of Western Australia [2004] WASCA 296 "R" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950278; 15 May 1995 "TDN" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950728; 8 December 1995 Chan (1989) 38 A Crim R 337 MS2 v The Queen (2005) 158 A Crim R 93 R v "W" (A Child) [2003] WASCA 118 R v ALH (2003) 6 VR 276 The State of Western Australia v Houston [2005] WASCA 167 Western Australia v Marchese (2006) 163 A Crim R 363 WO (a child) v Western Australia (2005) 153 A Crim R 352 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- "A CHILD" [2007] WASCA 115 CORAM : STEYTLER P
- McLURE JA
MILLER AJA
- Appellant
AND
"A CHILD"
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : MH 245 of 2006, MH 246 of 2006, MH 247 of 2006, MH 248 of 2006, MH 249 of 2006
Catchwords:
Criminal law - State appeal against sentence - Indecent dealing and sexual penetration - Child complainant and accused - Approach to sentencing young
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offenders - Whether 18 month intensive youth supervision order manifestly inadequate - Turns on own facts
Legislation:
Criminal Code (WA), s 320
Young Offenders Act 1994 (WA)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr R Cock QC
Respondent : Mr A J Robson
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Legal Aid WA
Case(s) referred to in judgment(s):
Chan (1989) 38 A Crim R 337
K (A Child) v The Queen, unreported; CCA SCt of WA; Library No 960523; 16 September 1996
KSB (A Child) v The State of Western Australia [2004] WASCA 296
MS2 v The Queen (2005) 158 A Crim R 93
R (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950278; 15 May 1995
R v ALH (2003) 6 VR 276
R v W (A Child) [2003] WASCA 118
TDN (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950728; 8 December 1995
The State of Western Australia v Houston [2005] WASCA 167
Western Australia v Marchese (2006) 163 A Crim R 363
WO (a child) v Western Australia (2005) 153 A Crim R 352
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1 JUDGMENT OF THE COURT: This is a State appeal against sentence. The respondent was convicted on his own plea of guilty of two counts of indecent dealing with a child under 13 years contrary to s 320(4) of the Criminal Code (WA) ("Code") and three counts of sexual penetration of a child under 13 years contrary to s 320(2) of the Code. At the time of the offending the respondent was aged 14 years and the complainant was a 6-year-old boy. The respondent was sentenced to an 18 month intensive youth supervision order.
2 The indecent dealing involved massaging the complainant's penis on the outside of his clothing and kissing the complainant on the face. The sexual penetration involved two counts of penile penetration of the anus and one count of making the complainant perform fellatio on the respondent. All the offences were part of one course of conduct on the same date. In the course of offending the respondent threatened to kill the complainant if he did not do as the respondent said.
3 The State relies on six separate grounds of appeal although in substance the only ground is that the sentence is manifestly inadequate, the remaining grounds being particulars of that claim. The State contended that at the time of sentencing, the only appropriate penalty was immediate imprisonment.
4 When the respondent was two months old he was abandoned by his mother and left in the care of his then babysitter. She has been the respondent's primary caregiver since that time and the respondent regards her as his mother. They have had and continue to maintain a close and supportive relationship.
5 The respondent and his mother had been living in Manjimup for approximately six years before the offences were committed. As a result of community reaction to the offences, they moved to another country town. After his offending became known there, the respondent and his mother moved to Perth.
6 The respondent has significant cognitive limitations and associated learning difficulties. He is in the Education Support Unit at the high school he now attends in Perth. The offences were committed approximately six weeks after the respondent's fourteenth birthday. He had not previously committed a sexual offence and his conduct was characterised in the reports before the sentencing Judge as being out of character.
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7 The respondent was himself sexually assaulted by an older adolescent boy when he was about the complainant's age. At the time of sentencing the respondent had, on referral from the Department for Community Development, attended six sessions at Safecare, an independent agency that provides treatment, counselling and support to child sexual abuse offenders. It was intended that the respondent would continue receiving services from Safecare.
8 The sentencing Judge had before him a Community Justice Services report and a psychological report. The Community Justice Services report stated:
"[The respondent] appeared genuinely remorseful for his actions and has engaged willingly in his counselling to date with Safecare. [His mother] has also been supportive of this counselling and of [the respondent's] needs and has actively sought to deal with his issues. This has included re-establishing links with some of [the respondent's] biological family, as she feels that a stronger relationship with his Aboriginal heritage may assist him …
[I]t will be important for [the respondent] to be supported both in terms of his counselling needs and in ensuring that he continues to receive appropriate support wth [sic] his education. Given his special needs in this area and his strong attachment to [his mother], the author feels this would best be achieved within the community, through psychological counselling and the Safecare program, with close monitoring by Community Justice Services to support these services and address any other issues that may arise."
9 The psychological report confirmed it was critical that the respondent receive consistent and ongoing therapeutic intervention to address issues of abuse, both as a victim and perpetrator, and to that end, recommended that counselling with Safecare continue, supported by departmental counselling. The psychologist also noted that the respondent may be vulnerable in a custodial setting and recommended that the relationship between the respondent and his mother should be supported as she was his primary attachment and influence.
10 Updated reports were obtained for the purposes of the appeal. They disclose that the respondent is coping well at his new school where his teachers report that he is very well behaved, strives to achieve
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- academically and interacts positively with other students; that the respondent has fully complied with his reporting requirements to his juvenile justice officer, his Safecare counsellor and to police in accordance with his obligations under the Community Protection (Offender Reporting) Act 2004 (WA); and that the respondent has been open and honest in his approach to counselling as well as engaging positively in addressing his offending behaviour.
Principles relating to State appeals
11 It is a general principle applicable to all appeals that an appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge. However, it is entitled to intervene if, among other things, error can be inferred because the sentence is unreasonable or unjust. It will be unreasonable and unjust if it is manifestly inadequate because, for example, the wrong type of sentence was imposed.
12 To determine whether a sentence is manifestly inadequate it is necessary to have regard to the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342.
13 Special principles apply to State appeals against sentence: The State of Western Australia v Houston [2005] WASCA 167 at [52] - [54]; Western Australia v Marchese (2006) 163 A Crim R 363 at [25] - [28]. State appeals are brought in rare and exceptional cases to establish some point of principle and when a court decides to re-sentence an offender on a State appeal, it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
Sentencing young offenders
14 There are special rules relating to the sentencing of children. This was explained by Cummins AJA in R v ALH (2003) 6 VR 276 at [84] as follows:
"Children should be protected by the mantle of the criminal law, not oppressed by it. The time of Aethelstan although not illuminated by the insights of modern developmental psychology well understood the humanity and justice of
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- protecting children from the full rigor of the criminal law. The wisdom of such protection is manifest. Harper J … cited with evident approval a passage from Professor Colin Howard's Criminal Law:
'No civilised society regards children as accountable for their actions to the same extent as adults.'
The ancient sense of justice and modern cognitive psychology come together properly to protect children in their development to adulthood." [references omitted]
15 These observations were made in the context of discussing the common law presumption as to the capacity of children under the age of 14 to commit a crime. However they are just as relevant to punishment as to guilt (MS2 v The Queen (2005) 158 A Crim R 93 at [17]).
16 In this State the special rules relating to the sentencing of children are contained in the Young Offenders Act 1994 (WA) ("the Act"). The principles and considerations to be applied to the sentencing of young offenders are contained in s 7, s 47 and s 120 of the Act. It is unnecessary to detail them here save to note that detaining a young person in custody for an offence must only be used as a last resort and, if required, is only to be for as short a time as is necessary (s 7(h)). The Act places significant emphasis on the sentencing objective of rehabilitation: WO (a child) v Western Australia (2005) 153 A Crim R 352 at 362. As stated in that case, underlying the emphasis on rehabilitation is the long established understanding that the community is best protected by determined efforts to effect the rehabilitation of young offenders. Although retribution, punishment and general deterrence are also relevant sentencing objectives under the Act, they are ordinarily given significantly reduced weight particularly when the offender is still a child.
17 The Act establishes a hierarchy of penalties. The final three in the hierarchy are an intensive youth supervision order (s 99), an intensive youth supervision order with a custodial sentence (otherwise known as a conditional release order) (s 101) and a term of immediate imprisonment (s 118). An intensive youth supervision order without a sentence of detention can be for a period not exceeding 2 years (s 96). A conditional release order cannot exceed 12 months (s 99).
18 The State contended that at the time of sentencing the only appropriate disposition was a term of immediate imprisonment but that, because of the element of double jeopardy involved in a State appeal
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- against sentence and the respondent's compliance with the conditions imposed under the intensive youth supervision order, this Court should now impose a conditional release order.
19 The maximum sentence provided by law for indecently dealing with a child under 13 is 10 years' imprisonment and the maximum sentence provided by law for sexual penetration of a child under 13 is 20 years' imprisonment. It is also relevant to have regard to the standards of sentencing customarily observed for offences of this kind. Sexual offences by a child against another child are relatively infrequent. There are only five cases in which this Court or the Court of Criminal Appeal has considered an appeal against sentence in those circumstances: "K" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 960523; 16 September 1996; "R" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950278; 15 May 1995; "TDN" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950728; 8 December 1995; R v "W" (A Child) [2003] WASCA 118; "KSB" (A Child) v The State of Western Australia [2004] WASCA 296. In three out of the five cases a non-custodial order was determined to be appropriate. In the two cases where a term of imprisonment was imposed the offender was aged 16. However, the objective circumstances of the offending in this case are more serious than in the cases to which we have referred.
20 The State contends that the objective seriousness of the offending outweighs all other sentencing considerations so as to require a custodial sentence. In substance, the submission is to the effect that the primary sentencing objectives in this case should be retribution, punishment and general deterrence. We are not satisfied that is correct.
21 The respondent's course of offending against the complainant is unarguably very serious. We also accept that the fact and circumstances of the offending are such as to raise well-grounded concerns as to the nature and extent of the respondent's maladjustment and the associated risk of him re-offending. The suggestion to the contrary by the sentencing Judge was an error. In particular, it is, with respect, wrong to characterise the offending as simply the manifestation of an adolescent sexual urge. However, the central issue which the sentencing Judge correctly identified was what was likely to be the most effective course for eliminating or substantially reducing the risk of the respondent committing further sexual assaults in the short, medium and long term. That is of course in the respondent's best interests but it is also in the broader public interest. The sentencing Judge concluded that the most appropriate course was an intensive youth supervision order for 18 months. He did so having regard
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- to the respondent's adolescence, his significant cognitive limitations which further reduced his maturity, his lack of any prior sexual offending, the continuing support and influence of his mother and the reports from the psychologist and Community Justice Services which supported the imposition of a non-custodial order. The State has not discharged its burden of demonstrating that it was not open to the sentencing Judge to impose an intensive youth supervision order. We would dismiss the appeal.
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