TL (a child) v The State of Western Australia
[2005] WASCA 173
•14 SEPTEMBER 2005
"TL" (A CHILD) -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 173
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 173 | |
| THE COURT OF APPEAL (WA) | 14/09/2005 | ||
| Case No: | CACR:105/2005 | 4 JULY 2005 | |
| Coram: | STEYTLER P WHEELER JA MCLURE JA | 4/07/05 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | "TL" (A CHILD) THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal against sentence Very young offender Offender aged 11 years Serious offences Whether offences in the "worst category" Weight to be given to punishment and general deterrence Whether detention the only appropriate disposition Criminal law and procedure Whether appellant had opportunity to elect trial on indictment Criminal law and procedure Children's Court Relevance of cautions |
Legislation: | Children's Court of Western Australia Act 1988 (WA), s 19B Criminal Code (WA), s 7, s 8 Criminal Procedure Act 2004 (WA), s 40 |
Case References: | "MC" (A Child) v The Queen [2003] WASCA 205 "WO" (A Child) v The State of Western Australia [2005] WASCA 94 Ainsworth v D (A Child) (1992) 7 WAR 102 Hooper v The Queen (2003) 27 WAR 264 Johnson v Hayter [2001] WASCA 118 Pearce v The Queen (1998) 194 CLR 610 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : "TL" (A CHILD) -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 173 CORAM : STEYTLER P
- WHEELER JA
MCLURE JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : REYNOLDS P
Citation : 2064/05, 2065/05, 2066/05
Catchwords:
Criminal law and procedure - Appeal against sentence - Very young offender - Offender aged 11 years - Serious offences - Whether offences in the "worst
(Page 2)
category" - Weight to be given to punishment and general deterrence - Whether detention the only appropriate disposition
Criminal law and procedure - Whether appellant had opportunity to elect trial on indictment
Criminal law and procedure - Children's Court - Relevance of cautions
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 19B
Criminal Code (WA), s 7, s 8
Criminal Procedure Act 2004 (WA), s 40
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R W Richardson
Respondent : Mr K P Bates
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
"MC" (A Child) v The Queen [2003] WASCA 205
"WO" (A Child) v The State of Western Australia [2005] WASCA 94
(Page 3)
Case(s) also cited:
Ainsworth v D (A Child) (1992) 7 WAR 102
Hooper v The Queen (2003) 27 WAR 264
Johnson v Hayter [2001] WASCA 118
Pearce v The Queen (1998) 194 CLR 610
(Page 4)
1 STEYTLER P: I have read the judgment of Wheeler JA. I agree with it and it reflects my own reasons for dismissing the appellant's appeal against the sentences imposed on him.
2 WHEELER JA: On 4 July the Court dismissed the appellant's appeal against sentences imposed in respect of three counts of assault occasioning bodily harm imposed by the learned President of the Children's Court. Those sentences were 2 months' detention on two of the counts and 3 months' detention on the third, all terms to be served concurrently. These are my reasons for dismissing the appeals.
The offences
3 The facts out of which these charges arose were as follows. At about 11.10 pm in April this year the appellant was in company with several other young people at the Carlisle train station. The two male complainants and a female friend of theirs (all also relatively young people) were waiting at the train station, when associates of the appellant attacked and assaulted one of them, without provocation. The appellant became aware that a fight had commenced and ran some 30 metres to become involved. Once there, he punched one of the complainants to the back of the head with a clenched fist, that being the subject matter of the first count.
4 He then turned and punched the other complainant in the face with a clenched fist. Some of his associates overpowered the other complainant and punched and kicked him until he fell to the ground. While he was lying on the ground, the appellant punched him twice in the head, then stepped back and kicked him in the upper body. This attack was the subject of the second of the counts.
5 The appellant and his associates momentarily stopped the attack, the first complainant assisted the complainant who was on the ground to get to his feet, and they attempted to leave the scene of the assault with their friend. However, while they were trying to leave, the first complainant was again attacked by associates of the appellant, being punched and kicked. The appellant picked up a number of large railway stones and ran to join in, throwing three stones at the complainant from less than a metre away. Each of them hit the complainant, the last hitting him in the head. The appellant then punched the complainant several times. An associate pushed the complainant to the ground where the appellant kicked and kneed him several times in the head, punching him whilst he was attempting to get to his feet. An associate then pushed that complainant to
(Page 5)
- the railway track, about one and a half metres below the platform and while he was lying on the railway line, the appellant picked up a number of stones and again threw them at the complainant.
6 The assault only stopped when Transit guards arrived at the scene and the appellant and his associates fled.
7 The entire course of the attack was captured on security video, which we have had the opportunity of viewing. At the time of these events, the appellant was but 11 years of age. He had no history of prior offending.
The issues
8 Although there were a number of grounds of appeal, they come down in the end to three principal issues. First, it was submitted that his Honour erred in forming the view that the offences were of such a serious nature that detention was the only appropriate disposition. Next, it was submitted that his Honour erred in sentencing the appellant on the basis that he was legally responsible for all of the injuries suffered by the complainants. Finally, there was a submission that his Honour erred in not identifying whether he was dealing with the appellant on indictment or in the exercise of summary jurisdiction. It is convenient to take these grounds in reverse order.
Jurisdiction
9 Section 19B of the Children's Court of Western Australia Act 1988 (WA) relevantly provides:
"19B. Jurisdiction and procedure for charges of indictable offences
(1) If a child is charged with an indictable offence and —
(a) the offence is such that, if an adult were charged with it, it must be tried on indictment; or
(b) the circumstances of the alleged offence are such that —
(i) if an adult were charged with it, it could, by virtue of section 5 of The Criminal Code, or another written law, be tried either on indictment or summarily; and
(Page 6)
- (ii) the Court, having complied with section 40(2) of the Criminal Procedure Act 2004, decides that it is to be tried on indictment,
- the child may elect to be tried on indictment by the Supreme Court or the District Court (as the case requires), and the Court shall so inform the child."
10 It is to be noted that the Court has, in the circumstances described, a duty to inform the child that the child may elect to be tried on indictment. However, that duty only arises if either the offence is such that an adult charged with it must be tried on indictment or, alternatively, if the Court decides that it is to be tried on indictment. Section 40 of the Criminal Procedure Act 2004 (WA), to which s 19B directs attention, provides as follows:
"40. Either way charges
(1) This section applies if the charge is an either way charge.
(2) If The Criminal Code section 5 applies to the charge, the court must give the prosecutor and the accused an opportunity to apply under that section for the charge to be tried on indictment."
12 In this case, the appearances recorded on the complaint reveal that the appellant first appeared in relation to this complaint on 26 April 2005. Although it is difficult to decipher, the record suggests that he was then represented by a Mr Bronson (or Bonson - the spelling varies in transcripts), who, we were advised from the bar table, is an officer employed by the Aboriginal Legal Service and authorised to appear in court representing Aboriginal people pursuant to s 48 of the Aboriginal Affairs Planning Authority Act 1972 (WA). Bail conditions were imposed at that time. On 10 May 2005, the appellant again appeared and was
(Page 7)
- again represented by Mr Bronson. A transcript of that appearance was placed before us. Mr Bronson advised the Court, prior to the appellant being required to plead to the complaints, that he had discussed the matter with the appellant and his family and that the appellant wished to enter pleas of guilty in relation to all complaints. He entered pleas of guilty, and orders were made remanding the appellant to appear before the President, ordering a report, and renewing bail.
13 While it would no doubt be desirable if, on each occasion when a child appears in relation to what is called an "either way charge", the Court expressly advised the child of the right to make an election, s 40 of the Criminal Procedure Act does not require that to be done. The "opportunity" of which the section speaks must be a real one, but the question of whether that opportunity has been afforded will depend upon the circumstances.
14 On this occasion, it is clear, both from the nature of Mr Bronson's employment and from what he actually said to the Court, that he was familiar with the legal process and that he had had the opportunity of discussing the matter with the appellant prior to the appellant's appearance. In those circumstances, in the absence of any evidence from Mr Bronson or the appellant to the contrary, it should be assumed that the appellant was aware of the ability to elect trial on indictment, and could have sought to do so instead of indicating that he wished to plead guilty. Indeed, as a practical matter, it can hardly be supposed that any person who wished to plead guilty would then, given the choice, choose to be dealt with on indictment, since the penalty available to the Court in respect of a person so doing is significantly greater than that available where an offender is dealt with summarily.
15 The appellant not having elected to be dealt with on indictment, it is then plain that he was to be dealt with in the exercise of the Court's summary jurisdiction and there is no indication in the remarks made by the learned President that his Honour had any different understanding. The sentences actually imposed were, of course, well within the range of those available on summary conviction. There is no substance in this ground.
Joint responsibility - ss 7 and 8 of the Criminal Code (WA)
16 The statement of material facts read to the Court, a significant portion of which I have summarised, made it clear that the appellant was a participant in what was a group attack upon the complainants. He did not begin the fight, but he joined in at a relatively early stage. The statement
(Page 8)
- of material facts also referred globally to all of the injuries suffered by each of the complainants, without attempting to separate out those that may have been caused as a direct result of the actions of the appellant (to the extent that it might have been possible to do so). There was no request for particulars prior to or during the proceedings, and no exception taken to the way in which the facts were presented. As a matter of law, his Honour was correct in saying, as he did at AB 116, that the appellant as a member of the group was a party to and legally responsible for the injuries suffered by each of the complainants as a result of the unlawful assaults against them.
17 However, although recognising the legal responsibility of the appellant in relation to the entirety of the harm caused, the learned President also quite rightly observed that, when there are many offenders involved in the commission of the same offence or offences, "while it is necessary to have regard to the incident giving rise to the offences as a whole, it is also very necessary to sentence each offender having regard to the particular role that that offender played in the commission of each offence … " (AB 114). In sentencing the appellant, having outlined the circumstances of the offences generally, his Honour then asked the question, directed at the appellant, "So, what was your particular role in all of this, [T]?" (AB 115). His Honour went on to answer that question in some detail, including the observation that, in his Honour's opinion, the appellant's violent behaviour "exceeded that of everyone else involved and each of the other three who are also before me this afternoon to be sentenced" (AB 116). By reference to the surveillance material, his Honour described the particular role of the appellant in some detail.
18 In short, as a matter of law, the appellant was a party to the offences committed by the others, once he had joined with them. The statement of material facts was presented in a way which made clear the individual role played by the appellant, but which did not distinguish between the effects of the particular acts committed by the appellant and acts committed by others, in relation to the causation of the injuries to the complainant; indeed, for most of the injuries it would no doubt be impossible to do so. When he came to sentence the appellant, however, his Honour was careful to have regard to the particular role played by the appellant. There is no substance in this ground.
Detention the only disposition
19 The task which faced the learned President was very difficult. The appellant was very young, with no previous convictions. His youth was a
(Page 9)
- powerful mitigating factor, and his rehabilitation a very important consideration. However, it is not the case that an offender as young as the appellant, with an unblemished record, cannot be subjected to a custodial sentence. If the serious nature and circumstances of the offences, and the need for punishment, deterrence, and the protection of the community call for it, a sentence of detention can appropriately be imposed. The President formed the view that this was such a case. He expressed the view at AB 123 that "the seriousness of your violent behaviour and the need to deter you and others from behaving in the same or a similar way outweighs the combination of all of the mitigating factors in your case, including the statutory requirement for great weight to be given to your rehabilitation within the community". The appellant submits, however, that, in doing so, he made a number of errors. I consider each of the errors alleged in the grounds of appeal in turn.
Ground 1.1 - Factual circumstances not in the "worst category"
20 His Honour formed the view that the circumstances of the offences put each in the worst category of the offence of assault occasioning bodily harm. There seem to be two issues relating to this ground.
21 It is submitted that his Honour could not have reached the conclusion that he did without attempting to assess what particular bodily injury to the complainant flowed from each count. It is submitted that it was necessary for him to do so, because the nature of the harm caused is a factor in determining whether the assault falls into the worst category. In my view, that reveals a misapprehension of the task of the sentencing Judge.
22 In a case such as the present, it is not possible to attribute particular harm to particular acts. However, it is plain some of the acts of the appellant, particularly the throwing of the sharp rocks from close range, must have contributed significantly to the bodily harm suffered by the complainants. Further, the potential for harm is a relevant factor, and the appellant's participation in a group assault, in which the complainants were assaulted at once by a number of people, in which rocks were thrown, and in which one complainant was pushed onto a railway track, demonstrates a very significant potential for harm. 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.
23 The other matter apparently raised in relation to this question is that it is submitted that it was not open to his Honour to find that each of the
(Page 10)
- offences was in the worst category. In particular, it is submitted that it is difficult to see how that conclusion could have been reached in relation to count 1, which involved but one punch to the back of the head. This point, in my view, has more substance. If his Honour had not distinguished between the counts in sentencing, it would have been at least arguable that he had taken a global approach, without distinguishing between the particular circumstances of each offence, which involved error. However, it is to be noted that it was the offence regarded as the most serious - that involving the throwing of the sharp rocks - in respect of which his Honour imposed the most severe sentence, being one of 3 months' detention. Although he said that "each" was in the worst category, he plainly distinguished between the offences, imposing lesser sentences in respect of those which were relatively less serious.
Ground 1.2 - His Honour erred in concluding that only immediate detention could operate as an effective personal deterrent
24 This ground is based upon the proposition that, as a matter of principle, the juvenile justice system recognises that rehabilitation of a child is best achieved without detention. It is also submitted that his Honour did not place appropriate weight on those aspects of the pre-sentence report which indicated some acceptance and understanding of the wrongfulness of the appellant's actions. However, given the view which his Honour formed of the "extreme seriousness of your vicious and violent behaviour" (AB 124), as he expressed it, it was open to him to reach the view that, notwithstanding the potential negative effects of detention in relation to a young offender, considerations of deterrence did require such a sentence in this case. His Honour did note from both the pre-sentence report and the psychological report that the appellant had expressed shame and remorse (AB 120 - 121) and expressly took those matters into account. The factors referred to in this ground are no doubt factors which led to the sentences of detention being very short.
Grounds 1.3, 1.4 and 1.12
25 Ground 1.3 is not separately addressed in the submissions, but appears to cover the same ground as ground 1.2. Grounds 1.4 and 1.12 cover part of the ground dealt with in relation to ground 1.1.
Ground 1.5 - His Honour erred in giving weight to a report of intimidating and threatening behaviour at school as an aggravating factor
26 Based on material in a Community Justice Services court report, his Honour said at AB 121:
(Page 11)
- "It seems that you have made it difficult for yourself by not regularly attending school and also by engaging in threatening and intimidating behaviour towards teachers and students when you've been at school. That is a matter of great concern."
27 At AB 124, his Honour said:
"Unfortunately, your intimidating and threatening behaviour in the school context has now progressed to actual physical violence against an innocent member of the community in a public place."
28 It was not sought before his Honour to have any further investigation of the material in the reports before him. However, at the appeal the appellant called, without objection by the respondent, the principal of the school attended by the appellant. Her evidence makes it clear that the behaviour to which his Honour referred had taken place after, rather than before, the events the subject of the complaints. To that extent, his Honour was mistaken. The timing is not, in my view, a matter of significance, since it would also be a matter of considerable concern if a young person who had committed offences of such a serious nature engaged in further threatening behaviour whilst awaiting sentence. That would tend to weaken the force of suggestions that the child was remorseful and appreciated the need to change his ways.
29 However, the evidence of the principal was broadly to the effect that, while the appellant's behaviour had been a cause for some concern, it appeared to result from problems that he was having in school, arising from a variety of circumstances. It does not appear to have been overtly violent behaviour in any event. The principal had spoken to the appellant about it and had agreed with him on some steps which would be taken in order to assist him. Unfortunately, because his school attendance was extremely poor, those steps were only able to be partially implemented.
30 It appears from the evidence which we have heard, and which his Honour did not hear, that his Honour may well have considered the appellant's behaviour at school to have been more serious than, in fact, it was. However, while his Honour referred to reports of the appellant's behaviour at school, and suggested that the appellant did have "a real issue" (AB 123) with violence and anger management, that question apparently played a relatively small part in the considerations referred to by his Honour. An over-estimation of the degree to which those matters were an "issue" for the appellant would not appear to me to be something
(Page 12)
- which would have caused his Honour to impose a different sentence, had he apprehended the facts correctly. Having regard to the role which those matters played in the sentencing remarks, they do not, in my view, constitute any reason for this Court to interfere with the sentence imposed.
31 It is clear that his Honour formed the view that he did primarily because of the serious nature of the offences. His finding (at AB 123 - 124) that, weighing all factors, the seriousness of the violent behaviour outweighed the matters of mitigation, was an appropriate one. It is consistent with the observations of McLure JA in "MC" (A Child) v The Queen [2003] WASCA 205 at [20] to the effect that, where the nature and circumstances of the offence are very serious, considerations of punishment and general deterrence are accorded greater weight.
Grounds 1.6 to 1.11
32 All of these grounds refer to personal circumstances of the appellant which might be considered to be mitigating, or to those sentencing principles relating to young offenders which give particular force to the observations that a sentence of detention in relation to a young person is one of last resort. In the end, however, they essentially cover the same ground as ground 1.1.
33 I would note, however, ground 1.10, which suggests that his Honour erred in concluding that the appellant's rehabilitation could only be achieved in a "structured environment", namely, detention. There are certain observations towards the end of his Honour's sentencing remarks which might be read as suggesting that detention was seen as a way of effecting the rehabilitation of the appellant - in effect, as a welfare measure. It would, of course, be quite wrong in principle for any of those concerned with young offenders, be they police, prosecuting authorities, or the courts to attempt to use the juvenile justice system as a means of achieving welfare ends, as this Court pointed out recently in "WO"(A Child) v The State of Western Australia [2005] WASCA 94. However, when one reads the whole of pages 124 - 125 of the appeal book, what it seems to me his Honour is doing at that point, is taking a last look at the options available to him, in order to see whether the protection of the community and the principles of deterrence could be served by some measure short of immediate detention. While he put it positively, saying, "Your rehabilitation needs to be given some proper impetus and, given your history, that can only be achieved in a structured environment", what it seems to me his Honour was doing was considering whether there was any way, outside the structured environment of detention, of ensuring that
(Page 13)
- the need for deterrence and community protection, flowing from these offences, could be satisfied. He concluded that it could not and, in my view, that conclusion was open to him.
Ground 1.13 - His Honour erred in failing to give weight to the State submission that a sentence of immediate detention was not the only appropriate disposition
34 It is true that counsel for the State tentatively suggested that, since the appellant was so young, and was acting in a group, "it may be open to your Honour to impose a conditional release order" (AB 83). That observation by counsel for the State highlights the difficulty of the sentencing task which was before his Honour, but it was his Honour's task, and it was for his Honour to give that submission such weight as he saw fit.
Relevance of cautions
35 Although no ground of appeal specifically relates to this matter, I note that there was some discussion before his Honour of whether he should receive a record of cautions in relation to the appellant or any of his co-offenders. It appears from the discussion which took place on 9 June, that, although his Honour and a number of counsel had read the decision in "WO" v The State of Western Australia, there was no copy of it available in court. There was some debate about why such a record might be received, and his Honour appeared to be uncertain of what would be the appropriate practice.
36 His Honour, of course, appreciated that it was not possible to have regard to cautions as if they were a record of prior offending by the child cautioned. However, his Honour also correctly noted that there were apparent variations in cautioning practice and that there could be a number of reasons for that. He noted that it was possible to look at the young offender's record "and determine whether or not the nature of the offence is relatively minor or not and whether it maybe could have been the subject of a caution in the overall scheme of things … " (AB 111).
37 In the light of the exchanges with counsel, it seems desirable to emphasise that the reason why it may be desirable for the Court to have access to a record of earlier cautions is that set out at [61] and [62] of the reasons for decision in "WO" v The State of Western Australia. That is, since the juvenile justice system does involve at a number of points a discretion to divert less serious offenders away from the courts, there is a risk that it may be presumed that those who come before the courts are a more serious category of offenders. However, it is critical at each stage of
(Page 14)
- the process that the Court should examine, by reference to the detailed circumstances of the prior offences, whether those assumptions are justified. In that context, what is probably of significance is not so much the fact that there may have been prior cautions of an offender; rather, in some circumstances, the fact that there are no prior cautions may be of particular significance. Where an offender presents with a string of prior offences which are not of a particularly serious nature, an absence of any prior cautions is one of the factors which may lead the Court to consider that the offender may not have been given appropriate opportunities for rehabilitation and which will, therefore, lead the Court to be particularly cautious before concluding that prior efforts at rehabilitation have failed. That is, a previous history of cautions cannot be used to reach a view that a young offender is not a person of good character, but the absence of any prior caution, or perhaps the nature of prior cautions, would be a matter which might lead the Court to make inquiries regarding the child's earlier contact with the juvenile justice system and about any efforts which may - or should - have been made towards rehabilitation at that stage.
38 MCLURE JA: I agree with the reasons given by Wheeler JA.
8
7
3