The State of Western Australia v JC (A Child) - [2021] WASC 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JC (A Child) [2021] WASC 21
CORAM:   SMITH J
HEARD:   10 NOVEMBER 2020
DELIVERED          :   27 JANUARY 2021
FILE NO/S:   SJA 1045 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
JC (A Child)
Respondent

ON APPEAL FROM:
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE A E HORRIGAN
File Number            :   CC PE 4576 of 2018, CC MI 233 of 2019, CC PE 4454 of 2019

Catchwords:

Criminal law - Appeal against sentence - Home burglary mandatory penalties - Imposing formal punishment upon conviction for home burglary offences pursuant to s 401(2)(a) or s 401(2)(b) of the Criminal Code is an irrelevant consideration when considering whether to exercise the power conferred by s 67 of the Young Offenders Act 1994 (WA) to refrain from imposing any punishment

Criminal law - Appeal against sentence - Statutory preconditions for the exercise of the power conferred by s 67(1)(b) of the Young Offenders Act considered - Meaning of the term 'punishment' in s 67 and whether 'such punishment as the court may approve has been inflicted on the offender' encompasses a period of presentence detention on remand

Legislation:

Criminal Code, s 401(2)(a), s 401(2)(b), s 401A(2)
Young Offenders Act 1994 (WA), s 67, s 67(1)(b), s 189

Result:

Leave to appeal on ground 1 granted
Leave to appeal on ground 2 refused
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	Mr B M Murray
Respondent	:	Ms G K Herford & Mr J Gullaci

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Aboriginal Legal Service of Western Australia

Case(s) referred to in decision(s):

Churnside v The State of Western Australia [2016] WASCA 146
D v Edgar [2019] WASC 183
DC v The State of Western Australia [2014] WASCA 121
Eldridge v The State of Western Australia [2020] WASCA 66
G (A Child) v The Queen (1997) 94 A Crim R 586
LCM v The State of Western Australia [2016] WASCA 164
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Marshall v Kirwan [2020] WASC 93
Mason v The State of Western Australia [2018] WASCA 43
Narkle v Hamilton [2008] WASCA 31
Nedi v The State of Western Australia [2018] WASCA 193
The Director of Public Prosecutions for Western Australia v Brown [2012] WASCA 102
The State of Western Australia v 'A Child' [2007] WASCA 115
Wilson v The State of Western Australia [2010] WASCA 82

SMITH J:

1.0 The appeal, the grounds of appeal and the result

This is an appeal by the prosecution.
The appellant seeks leave to appeal the sentence imposed on the respondent on 29 May 2020 by a magistrate sitting in the Children's Court of Western Australia for two counts of aggravated home burglary, contrary to s 401(2)(a) and one count of home burglary, contrary to s 401(2)(b) of the Criminal Code.
As at the date of sentencing, the respondent to the appeal had spent 82 days in remand, after being charged with the home burglary offences, two counts of stealing a motor vehicle, one count of stealing, and two counts of aggravated burglary.
The respondent was sentenced for eight offences, including the three home burglary offences, by making an order on each count, pursuant to s 67 of the Young Offenders Act, to refrain from imposing any punishment.
The appeal only relates to the sentence imposed on the three home burglary offences.
The appellant presses two grounds of appeal. These are as follows:
1.The learned Magistrate erred in the exercise of her sentencing discretion by taking into account that a decision to refrain from imposing punishment pursuant to s 67 of the Young Offenders Act 1994 would result in the respondent's convictions for home burglary offences not being treated as a 'relevant conviction' for the purposes of ss 401B and 401(4) of the Criminal Code in the event that the respondent was to again be convicted of home burglary offences, in circumstances where that consequence was irrelevant to the exercise of the sentencing discretion.
3The learned Magistrate erred in disposing of the charges by way of an order pursuant to s 67(1)(b) of the Young Offenders Act1994 in circumstances where the conditions precedent for making such an order did not exist, namely that:
3.1.a court approved punishment had not been inflicted on the offender by a responsible adult; and
3.2.a responsible adult had not undertaken to inflict court approved punishment on the offender.
For the reasons that follow, leave to appeal on ground 1 of the appeal should be allowed. It is clear that the sentencing magistrate took into account an irrelevant consideration when sentencing the respondent by making the order to refrain from imposing any punishment for the three home burglary offences on grounds that included it would be remiss to impose 'strikes' on a young person who has foetal alcohol spectrum disorder (FASD).
Although leave should be granted on ground 1 of the appeal, I am not satisfied that the appeal should be allowed on this ground, as I am not satisfied that a different sentence should have been imposed for the home burglary offences.
As to ground 3 of the appeal, I am satisfied on the facts before the sentencing magistrate that the preconditions for the exercise of the power conferred by s 67 of the Young Offenders Act had been met, and that it was open to her Honour to refrain from imposing any further punishment on the respondent for the home burglary offences.
For the reasons that follow, the appeal should be dismissed.

2.0 Background ‑ the facts of the offences, the offender's personal circumstances and the magistrate's sentencing remarks

The facts of the three home burglary offences are as follows:
(1)On Wednesday 28 November 2018, the respondent entered the enclosed garage of a home in Woodbridge, via an open roller door. He did not enter the house but stole items from a car in the garage, which included jewellery, house keys, cash, an identity card, and a workplace card. He was disturbed by the homeowners and ran from the scene.[1] Three of the victim's stolen cards were later used in fraudulent transactions.
(2)Between 10.30 am and 1.13 pm on Monday 11 March 2019, the respondent forced open the front bedroom window of a home in Midvale to gain entry. Once inside, he went into several rooms, including the victim's main bedroom. The victim was not home at the time of the offence. Knives and tins of money containing approximately $500 of coins were stolen. The respondent left the house through the front window.[2]
(3)In the afternoon of Wednesday 23 October 2019, the respondent and a co-offender forced entry to a home in South Guildford by smashing a front bedroom window. They stole an unregistered 2019 model Kawasaki motorcycle, valued at approximately $8,800, by pushing the bike from the address. The following day, the respondent and his co-offender were located by police pushing the stolen motor vehicle in Koongamia.[3]
[1] Charge PE 4576 of 2018.
[2] Charge MI 33 of 2019.
[3] Charge PE 4454 of 2019.
The offences occurred when the respondent was 14 and 15 years old, and he was 15 years old at time of sentence.
The respondent was born to a mother with a history of chronic alcohol abuse, who has spent considerable periods of time in prison. He was born in prison, and has been in the care of the Department of Communities since he was a small child. The respondent's father is unknown.
At the time of imposing the sentences, her Honour had before her two comprehensive reports written by a senior child protection worker employed by the Department for Child Protection and Family Support. The reports are dated 12 March 2020 and 25 May 2020.
Her Honour also had before her:
(a)a report from a Senior Youth Justice Officer employed by the Department of Justice dated 26 May 2020; and
(b)a joint report titled 'Updated Patches Multidisciplinary Fetal Alcohol Spectrum Disorder (FASD) Assessment Report' (FASD report) dated 20 December 2018, prepared by a paediatrician, a clinical neuropsychologist registrar, a clinical neuropsychologist, and a speech pathologist.
These reports indicate that the respondent is a child who has suffered significant disadvantage throughout his life, and has significant cognitive and intellectual deficits.
The authors of the FASD report record in their summary of findings (among other matters) that:
(a)the respondent had antenatal exposure to alcohol and other substances, and has a complex background of exposure to domestic violence and itinerant living, and several failed care placements;
(b)of the FASD domains, he has severe impairments in seven out of ten, with two domains being unable to be assessed. He also has ADHD (Attention Deficit Hyperactivity Disorder), anxiety, PTSD (Post Traumatic Stress Disorder) and microcephaly (reduced brain growth);
(c)the respondent's cognitive abilities falling within the very low range, along with his difficulties with language, make him vulnerable to influence from peers. He may have difficulty in reasoning and understanding the consequences of his actions;
(d)the respondent has marked executive functioning difficulties. He may struggle to prevent himself from acting on impulse, leading to increased risk that he will complete (commit) opportunistic crimes; and
(e)the respondent is sensitive to information overload. He has a tendency to mask his language difficulties, and it may therefore not be obvious to others when he does not understand what is said to him. This will impact his ability to learn from his mistakes within the legal system.
The two most significant people in the respondent's life are his grandfather, who died on 5 April 2019, and his sister, who at the time of sentencing was 18 years old. He has four other siblings. From at least since their grandfather died, if not before, the respondent's sister has cared for the respondent. She, however, has experienced significant challenges trying to manage his behaviour and, at the same time, find a stable home for both of them. She was unable to remain living in her grandfather's public housing some months after he died because of overcrowding, and domestic disturbances from residents in the house resulted in the lease being terminated.
The respondent was granted bail for the offences, as those acting on his behalf were able to establish exceptional circumstances,[4] but was not released on bail because of issues 'with his accommodation'. As a result, he spent 82 days in detention on remand.
[4] The respondent fell within the scope of sch 2 of the Bail Act 1982 (WA).
When the matter came before her Honour for sentencing on 29 May 2020, her Honour enquired from the Youth Justice Services Officer where it was anticipated that the respondent could live, and her Honour was informed that:
(a)he would stay with his sister at his aunt's house in Girrawheen; and
(b)his aunt's house was not a long-term stable placement, but the Department was supporting his sister to look for her own property for her and the respondent to stay in.
After the facts of all of the offences, including the home burglary offences, were read to the court, counsel for the respondent made the following submissions in mitigation:
(1)When most of the offences were committed by the respondent they were committed in company with the respondent's cousins, extended family members, or other people that the respondent associated with.
(2)Although the respondent had been diagnosed with FASD, he was not at that time eligible for the National Disability Insurance Scheme (NDIS) as attempts to engage him in a neuropsychological assessment to determine his eligibility had been unsuccessful.
(3)The respondent, like other young people with FASD, is easily led, especially by older family members. There are 10 identifiable impairments in a diagnosis of FASD. He has a severe impairment in seven (out of 10) criteria for an assessment of FASD.
(4)The respondent has had a very unstable childhood and significant issues with parents and responsible adults caring for him. However, his young sister has stepped up to care for him. The reports indicate that they are clearly each other's primary attachment figures.
(5)The Department of Communities is supportive of the respondent returning to live with his sister, and the respondent will need significant support from the Department, who are his guardian and his responsible adult, and who should be working with the respondent and his family.
(6)The respondent does not have the most significant record or a history of significant offending.
(7)The respondent has spent 82 days in custody in relation to the offences.
The respondent's counsel then made a submission that, in light of the fact that he had spent 82 days in custody, the respondent had served his punishment for the offences, and that, in light of the issues (disabilities and disadvantage) that he faces, an order should be made pursuant to s 67 of the Young Offenders Act (to refrain from imposing punishment for the offences).
The prosecutor's primary position on sentence was that her Honour should make an intensive youth supervision order (without detention), pursuant to div 7 of the Young Offenders Act.[5]
[5] Primary ts 25 May 2020, page 11.
However, before putting to her Honour that the State's primary position on sentence was the imposition of an intensive youth supervision order, the prosecutor made a submission that instead of making a s 67 order, if the court was of the view that the time the respondent had spent in custody was sufficient punishment, an appropriate sentencing disposition for the offences would be the imposition of a (concurrent) term of detention of 82 days backdated (to the first day that the respondent was remanded in custody). After making this submission the prosecutor said:
One side effect of an order under section 67 is it may not constitute a strike for home burglary provisions.
And the material effect, if that is the case, is that that would subvert a clear intent regarding these matters, and which are clearly extended towards juveniles.
The reason why the prosecutor said this is that the effect of such an order under s 67(1) is that a conviction for the home burglary offences would not constitute a first relevant conviction within the meaning of s 401A(2) of the Criminal Code. This is because a 'conviction' is defined in this provision as including 'a finding or admission of guilt that leads to a punishment being imposed on, or an order being made in respect of, the person, whether or not a conviction was recorded'.
Consequently, unless a person is sentenced for a home burglary offence, with or without a conviction being recorded, and a sentence of punishment is imposed on the person, the offence of home burglary is not counted as a first, second or third conviction for the purposes of the mandatory penalties in s 401(4) of the Criminal Code (colloquially referred to as a first, second or third 'strike').[6]
[6] G (A Child) v The Queen (1997) 94 A Crim R 586; see also the discussion in Eldridge v The State of Western Australia [2020] WASCA 66 [40] - [57] Marshall v Kirwan [2020] WASC 93 [11] - [18] of the statutory scheme for minimum mandatory penalties for offences of home burglary.
Her Honour then had a discussion with counsel for the respondent about a referral to the Youth Engagement Program to engage the respondent with their services.[7] Her Honour then spoke directly to the respondent about a number of matters, including seeking assistance from the Department of Communities support and a house for him and his sister to live in.
[7] At the hearing of the appeal counsel for the respondent, Ms Herford explained that the Youth Engagement Program is a program that is funded through the Aboriginal Legal Service, and it provides social work support for young people who are progressing through the criminal justice system. In particular, it provides services to young offenders, such as assistance engaging in counselling or finding accommodation.
Her Honour then referred to the mandatory minimum penalties legislation for home burglary by stating that the legislation very clearly talks about the importance of 'strikes', and then said that she also had to be very mindful about dealing with young people in accordance with each person's circumstances. Her Honour, then made the following sentencing remarks:
(1)There was ample evidence in the FASD report and from the Department of Communities about the respondent's personal circumstances.
(2)The respondent is fortunate that he has an important relationship with his sister, who is only 18 years old.
(3)General and specific deterrence has no role in sentencing a young person with the issues that the respondent has.
(4)To do anything other than to impose a s 67 (order) refraining from imposing further punishment on the respondent would be at odds not only with her perception of how she should deal with the respondent on these matters, it would also be remiss to impose strikes on a person who has a FASD diagnosis.
As to the imposition of a 'strike', her Honour then went on to observe that it would seem to be loathsome and improper to record a 'strike' on a child who presents with his range of difficulties and impairments.
Her Honour then went on to set out the mitigatory factors and reasons why an order should be made to refrain from imposing further punishment on the respondent. These were:
(a)his pleas of guilty, his age, his lack of criminal history, and the influence of his cousins who 'cart him around for the ride' (when the offences were committed by the respondent);
(b)his personal circumstances;
(c)the fact that he is not a good vehicle for general deterrence or specific deterrence; and
(d)the fact that he had spent 82 days in custody (with his difficulties and impairments).
As to the 82 days that the respondent had spent in custody, her Honour found that the respondent had already served enough punishment 'by being off the street' in detention (deprived of his liberty) at Banksia Hill, particularly during COVID‑19 because during that time he (like all other young persons in detention) could not receive visitors.

3.0 Sentencing principles

3.1 Appeals against sentence

The principles relevant to an appeal against sentence are well‑established. In Wilson v The State of Western Australia, the Court of Appeal summarised these principles as follows:[8]
1.The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2.It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3.Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4.An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).
5.To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].
[8] Wilson v The State of Western Australia [2010] WASCA 82 [2].

An appeal court may not substitute its own opinion for that of the sentencing judicial officer merely because the appeal court would have exercised the discretion in a different way.[9]
[9] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672.
Consequently, a specific error of law or fact must be shown, or that the sentence imposed must be so manifestly excessive or inappropriate as to demonstrate a miscarriage in the exercise of the discretion.

3.2 Young offenders

The Young Offenders Act establishes a hierarchy of penalties.[10]
[10] The State of Western Australia v 'A Child' [2007] WASCA 115 [17].
For charges that are dealt with by court proceedings, the dispositions open to the court are, in increasing level of seriousness:
(a)imposing no punishment (s 66);
(b)refraining from imposing any further punishment because of undertakings given by a responsible adult as to punishment that has been or will be inflicted on the offender, or because punishment which the 'court may approve' has already been inflicted on the offender (being the disposition in this appeal) (s 67);
(c)refraining from imposing any punishment by the offender entering into recognisance to be of good behaviour (commonly called a 'good behaviour bond') (s 69);
(d)a fine (s 71);
(e)a youth community based order (s 73);
(f)an intensive youth supervision order (s 78);
(g)an intensive youth supervision order with detention (otherwise known as a 'juvenile conditional release order') (s 101); or
(h)immediate imprisonment in detention (s 118).
The non-exhaustive principles that apply to the sentencing of young offenders were identified by the Court of Appeal in DC v The State of Western Australia by Mazza JA:[11]
1.The ultimate aim in sentencing a young offender is the protection of the community by the imposition of a sentence proportionate to the gravity of the offence, having regard to the circumstances of its commission and the circumstances personal to the offender.
2.Youth is normally a powerful mitigating factor and the rehabilitation of the young offender is generally a dominant sentencing consideration.
3.A young offender must not be treated more severely than an adult for the same offence.
4.Deterrence, both personal and general, punishment, retribution and public protection are accommodated in the YOA and are relevant to the sentencing of young offenders, although their role will generally be tempered. However, when in a particular case the rehabilitation of an offender appears unlikely, the offending is serious and the character and personal circumstances of the offender justify it, these factors may become significant.
5.Young offenders, even those with good antecedents, may, having regard to the circumstances of the case, be sentenced to detention or imprisonment.
6.The age and maturity of a young offender are relevant factors. Thus, a very young offender who is immature may be dealt with differently to an older child who, while still young, has a greater awareness and responsibility.

3.3 Sentencing considerations ‑ disadvantaged Aboriginal offenders and offenders with mental impairments

[11] DC v The State of Western Australia [2014] WASCA 121 (Buss and Newnes J JA agreed) (citations omitted); applied Nedi v The State of Western Australia [2018] WASCA 193 [36].

The general principles explaining the relevance of mental impairment to the sentencing process were summarised in Mason v The State of Western Australia:[12]
[12] Mason v The State of Western Australia [2018] WASCA 43 [58] ‑ [63].
Mental impairment may be relevant to sentencing in a number of ways, as explained in R v Tsiaras:
'First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.'
Those principles apply to any offender who has, either at the time of offending or at sentence, a mental disorder, abnormality or impairment of mental function.
If an offender contends that their moral culpability is lessened by mental impairment, the offender must prove, on the balance of probabilities, a causal connection between the impairment and the commission of the offence.
Mental impairment that is not causative of the offence may still be relevant to issues such as the offender's rehabilitation, treatment, deterrence and the question of whether any sentence of immediate imprisonment would weigh more heavily on the offender than a person in normal health.
Mental impairment which has a causal relationship to the offence can significantly affect considerations of personal and general deterrence, in addition to reducing the moral culpability of the offender, as explained by Mazza J, with whom McLure P and Buss JA agreed, in Gok v The Queen:
'The impact of general deterrence is something which is often misunderstood. It is not the law that once it is demonstrated that an offender has a mental impairment that general deterrence is irrelevant. General deterrence still operates when a court is sentencing an offender with a mental impairment but its effect is, to use a phrase sometimes used in the cases, 'sensibly moderated'. In many cases, general deterrence will be given less weight because the offender is simply an inappropriate medium for making an example to others. However, it is an extreme case where considerations of general deterrence are eliminated entirely …
The degree to which general deterrence is moderated very much depends on the facts of the case. At one end of the spectrum stands the case where the offender is so afflicted by his or her mental impairment or impairments that general deterrence plays virtually no part. At the other end are cases where the moderation of general deterrence is small because the offender knows what he or she is doing and appreciates the gravity of his or her actions.
With respect to personal deterrence, again much depends upon the circumstances. The law assumes that an offender has the intellectual capacity to be deterred from committing an offence by the prospect of being punished if the offence is committed and detected. Where an offender's mental impairment affects that person's ability to understand this, the effect of personal deterrence will be moderated. The extent to which it is moderated will depend upon the extent to which the offender has the ability to reason in the way I have described. In some cases … personal deterrence has little point whereas in other cases it would be more significant. (citations omitted)'
The complex and, at times, conflicting manner in which mental impairment may influence the sentencing process was explained by Buss JA, with whom McLure P and Mazza JA agreed, in The State of Western Australia v Malone:
'although a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self-induced) will often tend to diminish moral blameworthiness or culpability and, consequently, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects. For example, the existence of a causal connection between the mental disorder, intellectual disability or psychological difficulties, on the one hand, and the offending behaviour, on the other, might reduce the importance of general deterrence but increase the importance of personal deterrence or the need to protect the public. A sentencing factor may be relevant in a number of respects and not affect the sentencing outcome because the factor weighs both positively and negatively in the balance.'
In Churnside v The State of Western Australia, the appellant appealed against a sentence of a term of imprisonment.[13] The appellant suffered from a cognitive deficit, caused by FASD. The Court of Appeal observed his cognitive deficits limited the general and personal effect of imprisonment, and went on to observe:[14]
The circumstances of this case demonstrate that the courts of this State must make every possible effort and take every step consistent with the interests of justice to engage the services of governmental and non-governmental agencies to assist offenders to change their living circumstances and behaviour in a way which will reduce the risk of reoffending, particularly in relation to offenders who suffer from cognitive deficits of the kind associated with foetal alcohol spectrum disorder. Without those efforts being made, the repetitive cycle of offending followed by ineffective punishment is likely to continue indefinitely to the detriment of both the relevant offender and to the safety of the community. The circumstances of this case also demonstrate the practical difficulties of providing appropriate support and assistance to offenders who reside in regional and remote parts of our State. As Aboriginal people are over-represented amongst those who have suffered childhood trauma, deprivation and social disadvantage, and amongst those who suffer foetal alcohol spectrum disorder, and amongst those who reside in regional and remote Western Australia, assiduous effort by the courts of this State to engage and facilitate whatever support and services may be available to offenders with these characteristics is an essential component of any effective strategy to reduce disproportionate Aboriginal imprisonment.
[13] Churnside v The State of Western Australia [2016] WASCA 146.
[14] Churnside v The State of Western Australia [2016] WASCA 146 [7].
In LCM v The State of Western Australia, Mazza JA and Beech J set out the expert evidence of a doctor who explained how the diagnosis of FASD is best made:[15]
Dr Mutch explained that the best way of diagnosing FASD is by way of a multidisciplinary team that comprises a medical practitioner, usually a physician or a paediatrician, but someone with advanced specialist training, a psychologist, preferably a neuropsychologist, a speech and language pathologist and an occupational therapist (appeal ts 32). She testified to the effect that, if there is proof of prenatal alcohol exposure and if a child or adult is found through standardised testing to be impaired in three or more domains by negative two standard deviations away from the mean, a diagnosis of FASD may be made. Negative two standard deviations away from the mean equates to the subject of the assessment being in the lowest 2% of the population (appeal ts 34).
[15] LCM v The State of Western Australia [2016] WASCA 164 [86].
Their Honours also relevantly explained:[16]
By its nature, and as its name indicates, FASD involves a spectrum of disorders. The particular disorder of an individual with FASD may be severe, it may be minor. FASD may lead to a varying number of deficits of varying intensity. Thus blanket propositions about how a diagnosis of FASD bears on the sentencing process should be avoided. Rather, attention must be directed to the details of the particular diagnosis of FASD, including the nature and extent of the specific disabilities and deficits, and how they bear upon the considerations relevant to sentence.
[16] LCM v The State of Western Australia [2016] WASCA 164 [123].
Consequently, a diagnosis of FASD (depending upon the degree of severity) may be a significant mitigating factor.

4.0 Ground 1 of the Appeal

The appellant argues that it is apparent from the sentencing magistrate's repeated reference to avoid recording a 'strike', in the criminal history of the respondent, that this was an important factor in the type of sentence her Honour considered was appropriate. The appellant says that this consideration was an irrelevant one and amounts to an error of law.
In particular, the appellant argues that by having regard to whether or not the utilised sentencing option would amount to a 'strike', the sentencing magistrate had regard to a consideration outside of the bounds of sentencing principles that apply to young persons and the general principles of juvenile justice. Further, that the approach adopted by the magistrate was expressed, with considerable candour, to have been utilised in order to defeat a specific statutory regime in the future if the respondent was to re-offend. This is claimed to have resulted in a tainting of the sentencing process, by way of taking into account an irrelevant consideration, and is in error.
The respondent disagrees. Counsel for the respondent argues that, when the transcript of the exchange between the prosecutor and the sentencing magistrate is carefully read, that her Honour simply responded to a submission put to her by the prosecutor about the effect of the mandatory sentencing regime for home burglaries. In any event, if her Honour had regard to any irrelevant consideration, her Honour was led into error at the invitation of the prosecutor.
Irrespective of whether her Honour was led into error by the prosecutor, it is clear that her Honour did have regard to an irrelevant consideration. It was irrelevant for her Honour to consider that if she was to impose a punishment for the three home burglary offences, the effect of the imposition of punishment for those offences would constitute a 'strike' and a conviction within the meaning of s 401A(2) of the Criminal Code. This was a consideration that her Honour found weighed in favour of making an order under s 67(1)(b) to refrain from imposing any punishment.
Consideration of this point by her Honour was premature. This is because s 189 of the Young Offenders Act provides for an express mechanism for a court to displace the effect of the repeat offender provisions applying to home burglaries of the Criminal Code, by, in effect, deeming past convictions for home burglary not to be regarded as convictions for any purpose. If her Honour had imposed a punishment on the respondent for the offences of home burglary, and the respondent was to commit any further offences of home burglary whilst under the age of 18 years, an application could be made to a court in the future, in respect of these offences.
On conviction and sentence for a conviction for home burglary, previous convictions for home burglary will not to be regarded as convictions for the purpose of sentencing if certain preconditions in s 189 of the Young Offenders Act are met.
Pursuant to s 189(2), if a period of two years has expired since the discharge of any sentence imposed as a result of the prior conviction or the date of conviction (if no sentence that required to be discharged was imposed as a result of the conviction), the conviction is not to be regarded as a conviction for any purpose (including the repeat offender provisions that apply to home burglaries under the Criminal Code).[17]
[17] D v Edgar [2019] WASC 183.
If a period of two years has not expired, then pursuant to s 189(3) the court, if it thinks fit that special circumstances exist, may declare that s 189(2) applies.
The matters to consider when determining whether special circumstances exist were comprehensively considered by Strk AJ in D v Edgar.[18] In that matter, the factors her Honour found to constitute sufficiently special circumstances, so as to make a declaration under s 189(2) that the appellant's previously recorded convictions for aggravated home burglary offences should not be regarded as convictions, for any purpose, were the fact that the appellant (in that matter) came from a severely disadvantaged background, had FASD, the offending was non-violent, and the appellant had spent 108 days in detention prior to being sentenced.
[18] D v Edgar [2019] WASC 183 [113] – [141].
Whilst the respondent in this matter may have a strong case for an order to be made under s 189 in the future, the preconditions for a consideration of a s 189 declaration were not met, and her Honour did not exercise the power conferred by s 189, but the power conferred in s 67(1)(b) only.
Thus, her Honour's consideration of the effect of the repeat offender provisions in the Criminal Code when determining an appropriate sentence to be imposed on the respondent, was in error.
For these reasons leave to appeal on ground 1 of the appeal should be allowed.
The appellant, however, concedes that error on this ground alone is not determinative of the appeal, unless this court concludes that a different sentence should have been imposed on the respondent. Despite this submission, in light of the fact that:
(a)the appellant does not press ground 2 of the appeal, which ground alleged manifest inadequacy in the type of sentence imposed on the respondent for these offences; and
(b)counsel for the appellant has not put forward any submissions on this point;
I am of the opinion that is not open to this court to consider whether a different sentence should have been imposed on the respondent, unless the appellant succeeds on ground 3 of the appeal.

5.0 Ground 3 of the Appeal

Section 67 of the Young Offenders Act provides:
67.Undertakings and informal punishment
(1)The court may refrain from imposing any punishment upon being satisfied that ‑
(a)such undertakings as the court may approve have been or will be given by the offender or a responsible adult; or
(b)such punishment as the court may approve has been, or on the undertaking of a responsible adult will be, inflicted on the offender.
(2)The power given by subsection (1) is independent of the power given by section 66(1).
Section 66 of the Young Offenders Act provides:
66.Court may refrain from punishing in some cases
(1)Subject to subsection (2), the court may refrain from imposing any punishment.
(2)The court cannot exercise the power given by subsection (1) with respect to more than 2 offences but, for the purpose of this subsection, multiple offences arising from the one incident are to be treated as one offence.
The respondent had, prior to being sentenced, been convicted in the past of home burglary offences for which no punishment orders had been made pursuant to s 67(1) of the Young Offenders Act 1994 (WA).
The appellant points out it is clear that the sentencing magistrate did not act to refrain from imposing any punishment upon the respondent under s 67(1)(a), as this subsection only applies on the court being satisfied that such undertakings have been, or will be, given by the offender or a responsible adult.
In any event, it is clear the sentencing magistrate acted under s 67(1)(b) to refrain from imposing any punishment on the respondent on grounds that such punishment (as the court approved) had been inflicted on the respondent.
Put another way, her Honour was satisfied that the respondent had already been punished by his detention in Banksia Hill for 82 days, in circumstances where he suffered from a cognitive disability and had no visitors because of COVID‑19. His past detention under these conditions was found, in effect, by her Honour, to constitute punishment within the meaning of s 67(1)(b), and was approved (by the court) as punishment that had been inflicted on the respondent.
As the appellant points out, both s 66 and s 67 are found in div 2 of the Youth Offenders Act, which expressly refers to no punishment being imposed by the court, the distinction being that 'no punishment' in s 67 is conditional.

The appellant also argues that s 67, in contrast to s 66, focuses on extra‑curial punishment inflicted by a responsible adult, and it is an assessment of the adequacy of the extra-curial punishment by the court, which has been or will be imposed, which informs the decision under s 67 to 'refrain from imposing any punishment'. Further, that the infliction of parental punishment, and the corresponding absence of curial punishment, is said to be at the very core of s 67.
I do not agree that the absence of curial punishment is the core of s 67. Such a construction, if adopted, would not only provide the court with a limited discretion to approve punishment, but also would result in a reading down of the meaning of the word 'punishment' where it appears in s 67(1)(b). In addition, there would be limited scope for s 67(1)(b) to operate as an alternative to s 67(1)(a).
Section 67(1)(a) also applies to the approval by the court of punishment. Section 67(1)(a), by its terms, encompasses any undertaking by an offender or a responsible adult, which could include agreeing to undertake to inflict extra-curial punishment, including parental punishment, or any undertaking that punishment has been inflicted in the past or agreeing to undertake that punishment will be inflicted because of the offending (such as voluntary or involuntary grounding of the offender, for a period of time together with a complete prohibition on the use of internet devices).
Section 67(1)(a) also authorises the court to accept an undertaking that does not constitute punishment, such as undertaking to move residence away from where other young offenders reside.
A construction that s 67(1)(b) only applies to extra-curial parental punishment should also be rejected because this interpretation ignores the effect of the commas in this provision, which make it clear that the court may only approve parental punishment that will be inflicted on the offender, and not punishment inflicted by a responsible adult prior to the date of conviction and/or sentence (because of the offence or offences).
It is notable that there are no commas in s 67(1)(a).
As the respondent points out, s 67(1)(b) applies to punishment of the offender both before and after a finding of guilt and sentence. Further, that the word 'or' that appears after the words 'such punishment as the court may approve has been' (inflicted on the offender) indicates a disjunction between court approved punishment that has already been imposed and a responsible adult undertaking as to that punishment will be imposed (as distinct from agreeing to do so pursuant to s 67(1)(a)).
In support of ground 3 of the appeal, counsel for the appellant made two further points in oral submissions. First, that time spent in custody in detention on remand does not in itself constitute punishment. Second, pursuant to s 67(1)(b), the court may only approve punishment that is, or has been, imposed in response to a wrongdoing, and that remand in custody by reason of bail being refused, or bail being revoked, is not punishment in response to an offence being committed.
The appellant points out that time spent in custody prior to being sentenced is, in the context of offending by young people, a significantly powerful mitigating factor when determining the sentencing option to be utilised.
Pursuant to s 119 of the Young Offenders Act, the court can take time in remand into account when imposing a term of detention, by reducing that term of detention by an appropriate period, or by ordering that the term it imposes is to be taken to have begun on a specified day, being the day when that custody began or some later date that is not later than the date of sentence.[19] Time spent in custody prior to being sentenced is also a mitigating factor to be taken into account generally when determining an appropriate sentence.
[19] The court does not have power to backdate a sentence to take time served on remand into account in the absence of express statutory power to do so; Narkle v Hamilton [2008] WASCA 31 [31]; applied in a different context in The Director of Public Prosecutions for Western Australia v Brown [2012] WASCA 102 [60] (McLure P) (Buss and Murphy JJA agreed).
The appellant contends that time spent on remand cannot constitute punishment. This is said to be because when bail is refused or cancelled, the time spent on remand comes about prior to a finding or admission of guilt of wrongdoing, and to describe time spent on remand as punishment cuts across the fundamental tenet of the presumption of innocence.
The difficulty with this submission is that, once a person is found guilty or makes an admission of guilt to the court, time spent on remand is to be taken into account in sentencing.
It is conceded by the prosecution that if the court in this matter had imposed a period of backdated detention on the respondent, by having regard to the fact that respondent had spent 82 days in custody on remand, that the period spent by the respondent in custody on remand would have become punishment within the meaning of the Young Offenders Act.[20]
[20] ts appeal hearing 10 November 2020, page 10.
Consequently, taking into account time spent in custody in sentencing cannot be found to be relevant to the concept of the presumption of innocence.
As the respondent points out, the word 'punishment' in the opening chapeau to s 67(1) is to be construed as referring to the court itself refraining from imposing any punishment, that is, refraining from imposing the sentencing options open to the court under the Young Offenders Act.
The second point that the appellant seeks to make is that to constitute punishment within the meaning of the word where it appears for the second time (that is, not in the opening chapeau of s 67(1)(b)), the punishment approved by the court must have been imposed in response to the offence or offences for which the offender is being convicted. Consequently, it is argued that to regard presentence detention as punishment involves a retrospective characterisation of the time spent in custody.
I do not agree. This construction flies in the face of the general sentencing principle that presentence detention or remand in custody is usually to be regarded as time already served for an offence.
Time spent on remand is to be regarded as presentence custody, which, if in the discretion of a sentencing judicial officer it is taken into account, has the effect of reducing the severity of the sentence imposed following the entering of a conviction. This is because the conditions of remand in imprisonment or detention have the effect of depriving a person of their liberty, which by the very nature of that effect is a form of punishment.
It is artificial to regard time spent in custody presentence as not time spent in response to the commission of an offence. This is because the only reason why a person spends time in custody prior to being found guilty, or entering a plea to a charge, is because prior to a finding of guilt being made, the person is alleged to have committed the offence for which bail was refused or cancelled.
The use of the word 'punishment' where it next appears in s 67(1)(b) contemplates a wider class of punishment, and includes any form of punishment that the court approves that had been, or on the undertaking of responsible adult, will be, inflicted on the offender. Clearly, by the incorporation of extra‑curial punishment by a responsible adult in this provision, the word 'punishment' in this subsection must necessarily have a much wider meaning than the word punishment in the opening chapeau of s 67(1). The word 'punishment' in s 67(1)(b) must necessarily be construed, as the respondent points out, as simply to mean a penalty imposed on a person because of the offending, in respect of which a penalty can take any form.
Plainly, to deprive someone of their liberty during a period of presentence detention is clearly such a penalty and constitutes punishment within the meaning of s 67(1)(b).
For these reasons, leave on ground 3 of the appeal is refused.

6.0 Conclusion

The appeal should be dismissed. I will hear further from the parties as to the orders that should be made to give effect to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
27 JANUARY 2021