TL (A Child) v State of Western Australia

[2007] HCATrans 57

[2007] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P65 of 2005

B e t w e e n -

TL (A CHILD)

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 FEBRUARY 2007, AT 1.01 PM

Copyright in the High Court of Australia

MR T.M. FORREST, QC:   If the Court pleases, I appear with MR L.C. CARTER for the applicant.  (instructed by Aboriginal Legal Service of Western Australia, Inc)

MR D. DEMPSTER:   If the Court pleases, I appear for the respondent.  (instructed by the Director of Public Prosecutions (WA))

CALLINAN J:   Yes, Mr Forrest.

MR FORREST:   I think, your Honours, I need initially to ask for an extension of time in which to bring this application.  The circumstances are set out at page 114 of the application book in the affidavit of Mr Collins.

CALLINAN J:   Is that opposed, Mr Dempster?

MR DEMPSTER:   Your Honours, there is no objection.

CALLINAN J:   No objection, thank you.  Yes, continue, Mr Forrest.

MR FORREST:   Thank you, your Honour.  We contend that this application raises issues of fundamental importance to the sentencing of children and young offenders.

HEYDON J:   There is just one slight problem; has not the sentence been served?

MR FORREST:   Yes, it has.

HEYDON J:   And there is no challenge to the conviction?

MR FORREST:   No, there is no challenge to the conviction.

HEYDON J:   Does that not make anything this Court would say to be entirely academic?

MR FORREST:   No, we submit not, your Honour.

HEYDON J:   Litigation is a contest here between the State and a human being.  Nothing that this Court does can help that human being.

MR FORREST:   With respect, your Honour, we submit that if this Court is able to right a miscarriage of justice ‑ ‑ ‑

CALLINAN J:   No, Mr Forrest.  It really is in the nature of a purely advisory opinion, and this Court does not give them.  You are really asking us to say something that might have an effect upon other cases and can have no possible effect upon this case.  You do not challenge the conviction, the sentence has been served.  There is absolutely no utility in an appeal for your client, just some statement that would be the best that you could possibly achieve that the sentence should have been different.  This Court does not entertain those matters.  I think it is one of the most unpromising applications that could be made.

MR FORREST:   Can I take your Honours to page 139 of the Court book.  We submit that success on appeal would be of real significance for three reasons.  We say that the applicant is entitled to remedy the injustice on the record.  Secondly, should he commit any offences in the future, the sanction received for this matter will be relevant to the determination of any sentence imposed, and thirdly, the application ‑ ‑ ‑

CALLINAN J:   What will be relevant will not be how long he has served or what the sentence was.  What will be relevant is that he has been convicted of a particular sentence.  The duration of the sentence imposed by the sentencing court will not be relevant in the event that he commits any other offences, and that is a very unpromising submission too, that he should be able to commit offences in the future and have a different view taken of his criminal record, so that he can commit offences in the future.  Is that the submission?

MR FORREST:   No, it is not the submission at all, your Honour.

CALLINAN J:   This Court does not proceed upon the basis – and, indeed, I do not think any court would proceed upon the basis - that it takes into account the possibility even, let alone the likelihood, of future criminal conduct, and that is what you have just asked us to do.

MR FORREST:   There is additionally an issue, we submit, of broad public importance and that is the construction of the Young Offenders Act, and whether general deterrence ‑ ‑ ‑

CALLINAN J:   If that is a matter of public importance, then it will be dealt with when the matter is a live issue and can have an effect upon parties to the question in such a situation.  In the meantime, this Court is hardly likely to want to waste its time dealing with a matter which can be of no utility to an applicant before it.

MR FORREST:   We submit that the detention of an 11-year-old boy, with no prior convictions, from a deprived background, regardless of whether he served the sentence is a matter of importance that ought to interest this Court.  We say that the approach that is taken in Western Australia is out of step with what is happening around the rest of Australia.  We say that the Young Offenders Act (WA) specifically as a matter of statutory construction ought be construed as to exclude the application of general deterrence, and yet the intermediate court and the Court of Appeal in Western Australia in the case of MC have effectively ruled that despite the fact that the Young Offenders Act does not mention the words “general deterrence” in over 200 sections, it ought be construed as being an appropriate sentencing principle in the sentencing of young offenders by virtue of the fact that community protection is considered a proper sentencing purpose and “general deterrence” somehow comes within that umbrella.

In Canada the precise issue has been considered and they have concluded what we urge in our outline of argument that “general deterrence” is impliedly excluded or specifically excluded from the Young Offenders Act and the failure for it to be mentioned was by design.  Exactly the same argument has been run in Canada in an equivalent piece of legislation in 2006.  It can be found behind tab 5 of our bundle of authorities and we submit that is a matter of general importance that ought to interest this Court.

Even if we are wrong about our construction of the Young Offenders Act and its application to the sentencing of all young offenders in Western Australia, we submit it would have to be in the most exceptional case imaginable that an 11‑year‑old offender could be incarcerated in circumstances where general deterrence can outweigh circumstances relating to rehabilitation and personal circumstance.  We submit that in this case there was nothing in either the nature of the offence or in any of the attendant circumstances that called for a custodial sentence.

CALLINAN J:   Well, what – very great violence, in company, unprovoked, very hurtful violence, in company.  How many assailants were there?  What did the evidence disclose?

MR FORREST:   I think the evidence disclosed that there were in excess of 10.

CALLINAN J:   He was one of a gang of 10, who attacked how many people?

MR FORREST:   He joined that gang after the assault.

CALLINAN J:   Yes.  How many people were under attack?

MR FORREST:   Two were injured.

CALLINAN J:   Two.

MR FORREST:   There probably was a third.

CALLINAN J:   Yes.

MR FORREST:   He joined the attack.  He was unsupervised and he was 11.  He had never been before court before.  The scheme of the Act is to try and rehabilitate young offenders.  The Act requires that detention be a disposition of last resort.

CALLINAN J:   What is actually the detention, Mr Forrest, that is involved?  Where does such an offender go if he is sentenced to detention?  Is it a children’s institution or ‑ ‑ ‑

MR FORREST:   Yes, it is what is called a juvenile justice facility.  We do not understand that there are special wings for 11‑year‑olds or 12‑year‑olds.

CALLINAN J:   Up until what age is a person a juvenile?

MR FORREST:   A person is a young offender up until the age of 18.

CALLINAN J:   One hopes there is some provision for rehabilitation there.

MR FORREST:   With respect, your Honour, in our submission, that blurs the issue of rehabilitation and deterrence.

CALLINAN J:   It is a matter that interests me, Mr Forrest.  I understand what you say about it.  Anyway, you continue.  It does strike one as initially unusual, perhaps until one looks at the facts and special circumstances, that a person so young should be sentenced to detention.  It is a natural initial reaction.

MR FORREST:   First impressions are sometimes pretty good ones.

CALLINAN J:   Yes.

MR FORREST:   We would submit that it is all very well for the intermediate court to approve of the characterisation of this as the worst category possible, the worst case scenario.  In our submission, that completely ignores the question of moral culpability of a juvenile offender.  Worst case categories are offences committed by people of full criminal responsibility who indulge in very violent behaviour.  Sure it is that this was a very serious offence.  It was serious in its objective characteristics but you cannot, we submit - when endeavouring to characterise this in the spectrum of offending, you cannot ignore the factor of his immaturity and we submit that in characterising this as the worst case scenario - and that is what the President of the Children’s Court did and that is what the Court of Appeal approved.  In doing that, that was, in effect, a building block to the sentence of detention and it ignores that characterisation, the immaturity of the offender.

The Act requires that all other options be excluded and we submit that it is untenable that those options could have been excluded on the facts that were before the President of the Children’s Court or, indeed, the Court of Appeal.

CALLINAN J:   Mr Forrest, is it right that the Court of Appeal dealt with this particular matter at 104 concluding, relevantly, at about line 42 on page 104 in paragraph 22?

MR FORREST:   Line 22?

CALLINAN J:   Yes, it seems to be one place and the main place where the Court of Appeal dealt with this submission when it was made to it, is that right?

MR FORREST:   I am sorry, your Honour?

CALLINAN J:   I am sorry, I will speak more loudly, Mr Forrest.  Is it right that it is there that the Court of Appeal dealt with the submission that you are making to us now on page 104, paragraph 22 at about line 42:

Having regard to the nature of the appellant’s role in the assault, and both the harm and the potential for harm, his Honour was correct in categorising these as very serious offences of their kind.

Now, that is under the heading “Ground 1.1 – Factual circumstances not in the ‘worst category’”.  Do you see that?

MR FORREST:   Yes.

CALLINAN J:   It seems to me that the Court of Appeal did not consider this necessarily to be the worst possible offence, just a serious one, or am I wrong about that?

MR FORREST:   You are correct about that, your Honour.  They, in effect, I think, watered down a little the finding of the President of the Children’s Court.

CALLINAN J:   Yes, so you do not really get anything out of this or establish any general principle in relation to young offenders committing an offence of this kind, assuming that any other offence would not have any different features anyway.

MR FORREST:   We say that page 107, paragraph 31 is really the nub of our ‑ ‑ ‑

CALLINAN J:   Yes, but again, the language is of the serious nature of the offences.  In other words, the Court of Appeal does not seem to have necessarily taken and does not seem to think that it does have to take the view that this is the worst possible offence or the most serious of its kind in order to reach a conclusion that the penalty was not manifestly excessive.

MR FORREST:   Yes, our submission is that the finding of the President of the Court of Appeal that weighing all the factors, including the seriousness of the violent behaviour, outweighed the matters of mitigation was an appropriate one is simply not open on the evidence.  We say that this Court where very, very young children are concerned ought intervene to say that it would only be in the most compelling case that factors pertinent to rehabilitation would be outweighed by factors pertinent to general or specific deterrence.  We say that whilst it is true that this was a vicious and serious offence, in the scheme of things it is not as serious as characterised either by the Court of Appeal or by the President.  The injuries sustained, and I do not want to horse‑trade about this, but the injuries sustained were reasonably light.  They were some grazes and some bruises, I think a black eye. 

In the spectrum of trespasses against the person and crimes involving trespasses against the person from a push to homicide, sure it is serious, but if it is not worst category and if it be the case that the Court of Appeal have come back from that categorisation, it is still, in our submission, when one factors into the overall matrix the immaturity of this young lad, it cannot be considered even a very serious example of the crime of assault occasioning actual bodily harm.  The objective circumstances might be serious, but when you factor into it the moral culpability that is necessarily much lower with a child of this age, it cannot be said that the crime was very serious, that the circumstances of the offence were very serious such as to overwhelm factors personal to the offender.  So that is how we seek to respond to those matters, your Honours.

There is one other matter I should mention before my time is up, which I see is not long.  We contend in our draft notice of appeal and in our summary of arguments that welfare considerations were at least part of the decision to impose a term of detention on this young lad.  We cite the previous case of WO v Western Australia which we say rightly observed

that welfare considerations play no part in the sentencing process.  You will see in the sentencing remarks of the President that a structured environment was thought to be good for this young fellow for a month and a half or two months into the future and that his mum might have time to catch her breath and look after him when he comes out.  It is our submission that was an error as well. 

The Court of Appeal said he did not really mean that.  What he meant was that he was having one last lingering look at the options open before concluding that detention was the only available option.  It cannot be reconciled with WO which is authority for the proposition that welfare considerations ought have no place in this type of sentencing exercise.  It is our submission that is an important point as well, and if welfare considerations did play a part, then every young fellow or girl from a deprived background would be more of a chance of getting a term of detention than white middle‑class kids from Peppermint Grove who have all the support structures in the world around them and do not need that structured environment in custody.  Thank you.

CALLINAN J:   Thank you, Mr Forrest.  We need not trouble you, Mr Dempster.

This is an application for special leave to appeal against sentence.  The sentence has by now been fully served.  The hearing of any appeal would be of little or no utility to the applicant.  This is not, therefore, a case which this Court should entertain by way of appeal. 

The application is dismissed.

AT 1.21 PM THE MATTER WAS CONCLUDED