WO (a child) v Western Australia - [2005] WASCA 94

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: "WO" (A CHILD) -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 94

CORAM: STEYTLER P
WHEELER JA
MCLURE JA

HEARD: 29 APRIL 2005

DELIVERED : 13 MAY 2005

PUBLISHED : 26 MAY 2005

FILE NO/S: CACR 44 of 2005

BETWEEN: "WO" (A CHILD)
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S :CACR 45 of 2005

BETWEEN :"RM" (A CHILD)
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :REYNOLDS P
Citation  :313-4/04, 350/04, 358/04, 410/04, 427/04, 440/04, 464-5/04, 22-5/05, 42/05, 75-82/05, 47/04, 50-3/04, 76-96/04, 249/04, 279-80/04, 394-6/04, 409/04, 2178/04, 403/04, 658/05

Catchwords:

Criminal law and procedure - Sentencing - Very young offenders - Offenders aged 13 years - Whether custodial sentence appropriate - Discussion of sentencing principles under the Young Offenders Act 1994 (WA) - Detention as a last resort - Diversion of young offenders from the Court - Relevance of breach of previous orders - Rehabilitation - Responsibility of the Court to satisfy itself that all reasonable steps have been taken towards rehabilitation

Young Aboriginal offenders - Regional areas - Access to resources

Legislation:

Young Offenders Act 1994 (WA), s 6(d)(iii), s 6(e), s 7(b), (g), (h), (i), (j), (k), (l), (m), s 23, s 24, s 29(2)(a), s 45, s 46(4), s 47, s 48, s 51, s 58, s 67, s 120(1), s 120(2)

Result:

Appeal allowed
Appellants resentenced

Category: A

Representation:

CACR 44 of 2005

Counsel:

Appellant: Mr R W Richardson & Mr P F Collins
Respondent: Mr S E Stone & Mr S M Stocks

Solicitors:

Appellant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

CACR 45 of 2005

Counsel:

Appellant: Mr R W Richardson & Mr P F Collins
Respondent: Mr S E Stone & Mr S M Stocks

Solicitors:

Appellant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

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

"B" (A Child) v The Queen (1995) 82 A Crim R 234
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Case(s) also cited:

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
"M" (A Child) v The Queen [1999] WASCA 111

JUDGMENT OF THE COURT:

The applications

These are applications for leave to appeal against sentence. On 30 March this year, both appellants pleaded guilty in the Children's Court to a number of offences, and were sentenced to a head sentence of 6 months' detention. The most serious offence in respect of each appellant was an aggravated armed assault with intent to rob, for which WO received 5 months' detention and RM 6 months. The complaint alleges this offence to have been pursuant to "s 393(c) & (d)" of the Code: it cannot be both, as the circumstances and penalties are different. However, the complaint is worded in terms of s 393(c), which carries a statutory…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] WASCA 94
Decision Date: 26 MAY 2005

CaseChat Overview and Summary

In the case of WO v Western Australia, the dispute involved the sentencing of a 13-year-old offender in the context of the Western Australian criminal justice system. The young offender, referred to as WO, had been convicted of a criminal offence and was facing potential custodial sentencing. The court had to determine the appropriate course of action under the principles set forth in the Young Offenders Act 1994 (WA). Central to the case was the question of whether a custodial sentence was suitable for such a young offender, considering the legislative emphasis on rehabilitation and the use of detention as a last resort.

The primary legal issue before the court was the appropriate application of sentencing principles for very young offenders, particularly those aged 13 years, within the framework of the Young Offenders Act. The court was required to consider the overarching objectives of the Act, which include diversion of young offenders from the court system, the relevance of any previous order breaches, and the importance of rehabilitation. Additionally, the court had to evaluate whether all reasonable steps had been taken towards rehabilitating the young offender, especially considering the unique circumstances of being a young Aboriginal offender from a regional area, which may impact access to resources and support.

The court deliberated extensively on the principles guiding sentencing for young offenders. It concluded that, given the offender's age and the potential for rehabilitation, a custodial sentence was not appropriate unless all other alternatives had been exhausted. The court emphasised the need to divert young offenders from the formal court process where possible and highlighted the importance of considering the offender's background, including their Aboriginal identity and regional context, in determining the most effective rehabilitative measures. Ultimately, the court ruled that a non-custodial sentence was more appropriate, focusing on rehabilitation and support services tailored to the needs of the young offender.

The final orders of the court mandated that WO be placed under a non-custodial sentence, with a focus on rehabilitation and support services. The court directed that all reasonable steps be taken to ensure the young offender has access to the necessary resources, considering their regional and cultural background. The decision underscored the importance of adhering to the principles of the Young Offenders Act, particularly the emphasis on diversion, rehabilitation, and the use of detention as a last resort.

Orders