Walters v McNamara
[2003] WASCA 22
•27 FEBRUARY 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WALTERS & ORS -v- McNAMARA [2003] WASCA 22
CORAM: ANDERSON J
HEARD: 19 FEBRUARY 2003
DELIVERED : 27 FEBRUARY 2003
FILE NO/S: SJA 1133 of 2002
MATTER :Justices Act 1902
and
Complaint Nos. 3120, 3121, 3122, 3123, 3580, 4465 of 2001 and 1946 & 1947 of 2002 in the Children's Court of Western Australia at Perth
BETWEEN: CRAIG LIAM WALTERS & ORS
Applicant
AND
IVAN ROBERT McNAMARA
Respondent
Catchwords:
Criminal law and procedure - Young offenders - Breach of youth community based order - Breach not trivial - Order that no further action be taken - Authority of Magistrate to make such an order
Courts and judges - Appeals - Jurisdiction - Whether appeal lies to Supreme Court against order in Children's Court that no action be taken in respect of breach of youth community based order
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 41
Young Offenders Act1994 (WA), s 82, s 83
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Applicant: Mr W J C De Mars
Respondent: Ms G A Archer
Solicitors:
Applicant: State Director of Public Prosecutions
Respondent: Legal Aid of Western Australia
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Dinsdale v The Queen (2000) 202 CLR 321
ANDERSON J: This is an appeal by the Director of Public Prosecutions from the determination of proceedings in the Children's Court of Western Australia on 30 October 2002 in which the Magistrate ordered that no further action be taken against the respondent for failure to comply with a condition upon which a youth community based order was made.
The background is that on 23 August 2002 the respondent, then a child with the meaning of the Young Offenders Act was the subject of a youth community based order of 6 months duration which required the respondent to meet supervision and attendance requirements and to perform 40 hours of community service work.
On 28 October an officer of Community Justice Services issued a notice to the respondent under s 82 of the Young Offenders Act to attend Court to be dealt with for his failure to observe conditions of the order specifically for failure to report for supervision as directed. The respondent appeared before the Children's Court on 30 October 2002 and admitted having failed to comply with the order. The failures were substantial. In a formal report made available to the Magistrate it was revealed that the respondent had persistently failed to attend counselling, perform community work or submit to supervision.
The powers of the Magistrate to deal with breaches of a youth community based order are contained in s 82 of the Young Offenders Act the relevant parts of which are:
"83(1)This section applies if -
(a)…
(b)in proceedings resulting from a notice to attend court given under s 82, the court finds that a person who is subject to a youth community based order has failed to comply with any condition of the order.
(2)If this section applies, the court may -
(a)order that no further action be taken because of the failure to comply with a condition upon which the youth community based order was made;
(b)if it decides that the offender should be further subject to a youth community based order, amend the youth community based order previously made; or
(c)cancel the order and deal with the offender for the offence that resulted in the order being made (in this section called "the original offence") in any manner in which it could have done when it found the offender guilty of that offence.
(3)The discretion given by sub‑section (2)(a) to order that no further action be taken can only be used if the court is satisfied that the failure is of such a trivial nature that no further action is appropriate, and the court making such an order is to record in writing the reasons why it considers that no further action is appropriate…"
There is no dispute in this case that the respondent's failure was not within the category of "such a trivial nature that no further action is appropriate" within the meaning of s 83(3). The Magistrate expressly so found. That being so, it was not open to him to order, as he did, that no further action be taken. He should have either amended the youth community based order previously made (s 83(2)(b)) or he should have cancelled the order and dealt with the respondent for the original offence (s 83(2)(c)).
None of this was disputed by Ms Archer who appeared for the respondent. She opposed the appeal on jurisdictional grounds. It was her submission that an order that no further action be taken because of the failure to comply with a condition upon which a youth community based order was made is not an order against which an appeal lies to this Court. The appeal provisions are contained in s 41 of the Children's Court of Western Australia Act 1988 the relevant provisions of which are:
"41(1)Subject to this part, an appeal lies to the Supreme Court from a decision of the Court [the Children's Court] when constituted so as not to consist of or include a judge, as if the decision were a decision of justices under the Justices Act 1902 and Pt VIII of that Act applies with such modifications as circumstances require to the appeal.
(2)In sub‑section (1) 'decision' means -
(a)…
(b)…
(c)a conviction or a finding whether made following a plea of guilty of an admission of the truth of any matter or following trial;
(d)…
(e)…
(f)a decision to make an order under Pt VII of the Young Offenders Act 1994 dealing with a person for an offence (whether or not the person may thereafter be further dealt with for the offence);
(g)…
(h)a penalty imposed or order made consequence on any such … finding …
…"
Mr De Mars who appeared for the Director of Public Prosecution submitted that the decision of the Magistrate fell within s 41(2)(f) above because the Magistrate, in deciding to make the order, made a decision to make an order dealing with the respondent for an offence. I do not think that a decision to order that no further action be taken because of the failure to comply with a condition of a youth community based order is a decision under s 41(2)(f). A mere non‑compliance with the requirements of a youth community based order is not an "offence" and it is that for which the respondent was before the Magistrate and it was that in respect to which the Magistrate had to make a decision.
However, it seems to me that the Magistrate did make a "decision" within the meaning of s 41(1). What he did fell within the extended definition of "decision" in s 41(2) in that there was a finding pursuant to s 41(2)(c) namely a finding that the respondent had breached the youth community based order and there was an order made in consequence of that finding within the meaning of s 41(2)(h). The order that was made consequent upon the finding that there had been a breach of the youth community based order was that no further action be taken.
In my opinion, the appeal is competent and should be allowed. The decision that no further action be taken should be set aside and the matter should be remitted to the Magistrate to be dealt with according to law in the light of these reasons for judgment.
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