WW (a child) v WILLIAMS
[2013] WASC 363
•3 OCTOBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WW (a child) -v- WILLIAMS [2013] WASC 363
CORAM: HALL J
HEARD: 27 SEPTEMBER 2013
DELIVERED : 27 SEPTEMBER 2013
PUBLISHED : 3 OCTOBER 2013
FILE NO/S: SJA 1110 of 2013
BETWEEN: WW (a child)
Appellant
AND
MARK JAMES WILLIAMS
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P HOGAN
File No :C AR S 1252 of 2013
Catchwords:
Criminal law - Appeal against sentence - Sentence of detention - Criminal damage - Whether failure to take into account harshness of conditions under which detention would be served - Whether sentence manifestly excessive - Whether sentence breached parity principle
Legislation:
Nil
Result:
Appeal allowed
Appellant re-sentenced
Category: B
Representation:
Counsel:
Appellant: Mr D D Brunello
Respondent: Mr M J Walton
Solicitors:
Appellant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
B (a child) v Hepple [2013] WASC 303
Green v The Queen[2011] HCA 49; (2011) 244 CLR 462
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Nguyen v The State of Western Australia [2009] WASCA 8
The State of Western Australia v JAB [2013] WACC 3
Wilson v Minister for Corrective Services [2013] WASC 157
York v The Queen [2005] HCA 60; (2005) 225 CLR 466
HALL J:
Introduction
On 27 September 2013 I allowed this appeal against sentence and re‑sentenced the appellant. These are my reasons for those decisions.
On 4 June 2013 the appellant pleaded guilty to one charge of criminal damage contrary to s 444(1)(b) of the Criminal Code (WA). Sentencing was adjourned in order to obtain pre‑sentence and detention management reports. On 11 June 2013 the appellant was sentenced to 2 months' detention. That sentence was made cumulative on a sentence that the appellant was already serving.
At the time the appellant was sentenced the Banksia Hill Juvenile Detention Centre was not operational due to a riot on 20 January 2013 that had caused extensive damage at that centre. For this reason juvenile detainees, including the appellant, had been relocated to the Hakea Prison and part of that prison had been designated as a juvenile detention centre. The conditions for juveniles at Hakea were significantly harsher. The nature of those conditions has been referred to by the President of the Children's Court in The State of Western Australia v JAB [2013] WACC 3 [118] ‑ [123], [140] ‑ [150]. See also Wilson v Minister for Corrective Services [2013] WASC 157.
Consideration of whether to seek a review of the sentence by the President of the Children's Court under s 40 of the Children's Court of Western Australia Act 1988 (WA) was delayed due to difficulties in obtaining the relevant transcript and the illness of the appellant's lawyer. An application for a review was filed on 27 August 2013. However, the State indicated an objection to the competency of that application because it was brought out of time and there was no power to extend time. The application was then withdrawn so that an appeal to this court could be brought under the Criminal Appeals Act 2004 (WA). An appeal notice was filed on 17 September 2013.
The appeal to this court was also brought out of time, however there is a discretion to extend time. The reasons for the delay are referred to above. In circumstances where the reasons for the delay do not justify an extension the court may nonetheless grant an extension where there would otherwise be a miscarriage of justice. That requires consideration of the grounds of appeal. For reasons that I refer to below there is merit in the appeal and an extension is appropriate.
There are three grounds of appeal. The first ground contends that the sentence infringed the parity principle. It is said that the sentence imposed on the appellant was inconsistent with sentences imposed on other offenders who committed similar offences in the same circumstances. The second ground is that the magistrate erred by failing to take into account a material consideration, namely the harshness of the conditions faced by the appellant at Hakea Prison. The third ground is that the sentence was manifestly excessive.
The respondent conceded that the appeal should be allowed in relation to ground 2 and that the appellant should be re‑sentenced for the offence. I am satisfied that that concession was properly made. In light of that concession it is strictly unnecessary to consider the other grounds of appeal. However, the matters raised by those grounds are relevant to re‑sentencing and I will give them some consideration.
The facts
The facts of the offending were not in dispute and can be briefly summarised.
On 20 January 2013 the appellant was in custody at the Banksia Hill Juvenile Detention Centre. He had been in custody on remand since 15 December 2012. He was 15 years old at the time.
A riot occurred at Banksia Hill on 20 January 2013. At the time the appellant was in a secure unit. It is not suggested that he was an instigator or ringleader of the riot. However, he became aware of what was occurring and smashed a portable fan in the room where he was confined. He did so in order to obtain magnets from the mechanism of the fan. He then used those magnets to smash a window with a view to escaping from the room. The attempt was unsuccessful. The appellant was later interviewed and admitted damaging the fan and the window.
For reasons that are unclear there was a delay in preferring with the damage charge. In the meantime the appellant appeared in the Children's Court and was dealt with for other charges on 22 January 2013, 8 March 2013 and 11 April 2013. In particular, on 11 April 2013 the appellant was sentenced to a total effective sentence of 8 months' detention backdated to commence on 15 December 2012 for a number of unrelated offences.
It would appear that the appellant was not charged with the criminal damage offence the subject of this appeal until 18 April 2013. On the hearing of this appeal counsel for the respondent accepted that had that charge been available to be dealt with on 11 April 2013 it is likely that any sentence of detention for the damage offence would have been ordered to be served concurrently. This is a relevant consideration in respect of any re‑sentencing that must now occur.
The 8 month sentence of detention imposed on 11 April 2013 was due to expire in full on 14 August 2013. Before that day the appellant became eligible for supervised released. However, the Supervised Release Board decided to defer supervised release due to the existence of other pending charges, including the damage charge. Accordingly, when the appellant came before the magistrate for sentencing on 11 June 2013 he was still in detention serving the sentence imposed on 11 April 2013. He continued to serve that sentence until 14 August 2013 and then commenced serving the cumulative two months imposed for the damage offence.
Sentencing remarks
When the appellant pleaded guilty on 4 June 2013 the magistrate asked whether there was any sentencing trend in respect of offenders dealt with for offences of this type. He referred to the issue of parity. It is clear that his Honour's concern was to ensure that any sentence he imposed was consistent with those imposed on others who had committed similar offences on 20 January 2013 at Banksia Hill. The prosecutor advised that other offenders in similar situations had been dealt with under s 67 of the Young Offenders Act 1994 (WA). Section 67 provides that:
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).
The prosecutor advised that another magistrate had taken the view that the harsher conditions at Hakea constituted punishment and justified imposing no penalty under s 67 for offences of this type. When pressed by the magistrate as to whether the prosecution sought a sentence of detention for the damage offence the prosecutor said that there was no basis for distinguishing the appellant from other offenders who had been dealt with under s 67. His Honour said that he was not persuaded on grounds of parity alone that a s 67 disposition was appropriate and that he would need a report to determine whether the appellant had suffered any unusually harsh conditions at Hakea. He then ordered reports and adjourned the proceedings.
A detention management report and a pre‑sentence report were available on 11 June 2013. These reports were not particularly informative in regard to how the custodial conditions at Hakea compared with those at Banksia Hill. Counsel who appeared for the appellant made submissions in regard to the conditions that the appellant had been serving his detention under at Hakea. Those submissions were not contested. Counsel said that the appellant had spent approximately four weeks in Unit 5 at Hakea under the supervision of adult guards. These guards were not trained to deal with juveniles and were often quite physically and verbally harsher than guards who were used to dealing with juveniles. It was submitted that since moving to Hakea the appellant's education had significantly suffered and he had only done 27 hours education since 12 February 2013.
In sentencing the appellant the magistrate referred to the general principles relevant to sentencing and the fact that an offence of wilful damage carries a term of imprisonment. He said that the seriousness of this offence arose more from the circumstances in which it was committed rather than the value of the items that were damaged. It is apparent that in this regard his Honour was referring to the fact that the offence occurred in a custodial environment and represented a challenge to authority.
His Honour said that sentencing options other than detention were limited because the appellant was already serving a term of detention. In regard to whether a sentence of detention should be made cumulative or concurrent, his Honour referred to the totality principle and said:
Some of the things to take into account there are totality, namely the time you've already served and will serve under the present sentence, and whether or not you've already suffered having punishment inflicted on you to such an extent that there should be no further punishment as [defence counsel] submits here by way of section 67 (ts 11/6/13, page 6).
His Honour concluded that the seriousness of the offence justified a sentence of detention. He said that one of the factors to be taken into account was the conditions under which the appellant would serve any such sentence. In this regard his Honour said:
And one of those principles is that the harshness of a regime of detention should be taken into account in determining what needs to be done by way of sentencing. In that respect, the harshness of your regime in the future will not be as it was because - although it's not in evidence and hasn't been said in mitigation, or indeed by the State - I think it's generally accepted that people will be out of Hakea by the end of July and back to Banksia from memory - something like that - by which time you will already be serving the sentence that you are serving.
In terms of harshness in the past, partially - the commission of this offence had no bearing on anything. You were already serving a sentence of detention. Whether or not you had committed this offence, you still would have been there. This offence did not - the harshness of the regime did not relate to this offence in any way, shape, or form. I accept, first of all - I should say - that the regime has been harsh, and I accept obviously, everything that is said in the case of [NAB v DHE].
And I've read this detention management report and I take on board the things that Mr Snare says. But the harshness of that regime had nothing to do with this offence and in the very short future, will have nothing to do with this offence. So even applying the necessary principles of sentence to the commission of this offence, and the sentencing for this offence, it has got nothing to do with it. So I discount that then, and come back to the ordinary principle of sentencing - the other one - which is there should be a separate sentence for offences committed at different times and in different circumstances.
I also get back to the principle of totality - totality which means that a sentence should not be imposed upon you that would cause - that would be in any way crushing, as they used to say. You're serving an eight month sentence from - and you were in custody before that - obviously on remand. Any sentence of detention, in my view, should properly be cumulative. It has to be as short as possible to comply with the necessary principles under the Young Offenders Act.
Bearing in mind all those things, I sentence you to two months' detention, cumulative on the present sentence (ts 11/6/13, pages 7 - 8).
Grounds of appeal
The grounds of appeal are as follows:
(1)The sentence of 2 months detention cumulative infringed the principle of parity in sentencing.
Particulars:
(a)Multiple other juveniles convicted of criminal damage arising out of the riot at Banksia Hill Juvenile Detention Centre, in similar factual circumstances and with not dissimilar antecedents, had earlier been sentenced to no further punishment (ie s 67 of the Young Offender's Act);
(b)The disparity in the relative sentences give rise to a justifiable of grievance on the part of the appellant in circumstances there was no relevant difference between his culpability and antecedents, and those of the other offenders.
(2)The Magistrate erred in law by failing to take into account a material sentencing consideration; namely, the mitigating factor of the harshness of the conditions of the appellant's past and likely future detention at Hakea Juvenile Detention Centre.
(3)The sentence of two months detention cumulative was manifestly excessive, in all the circumstances.
Particulars:
(a)The sentence of detention was significantly out of step with the standards of sentencing customarily observed for like offences;
(b)The Magistrate erred in imposing a custodial sentence in circumstances where there was another appropriate way to dispose of the matter.
Or, in the alternative
(c)The order that the sentence of detention be cumulative upon a pre-existing custodial sentence resulted in an aggregate sentence that did not bear a proper relationship to the overall criminality of the offending behaviour, when the offenders are viewed in their entirety and having regard to all the circumstances of the case, including circumstances personal to the offender.
It is convenient to commence with consideration of ground 2 since that ground was conceded by the respondent.
Ground 2 - Conditions of detention
There can be no doubt that the conditions under which an offender will serve a custodial sentence is a relevant matter to be taken into account by a sentencing judge, at least when those conditions are shown to be different from and more onerous than the conditions undergone by other prisoners: York v The Queen [2005] HCA 60; (2005) 225 CLR 466 [33] (Hayne J). That principle has been applied on many occasions in this State.
In The State of Western Australia v JAB [2013] WACC 3 the President of the Children's Court considered this principle in the context of juvenile offenders who had been moved to Hakea, an adult prison, following the Banksia Hill Detention Centre riot. His Honour concluded by stating the following:
In summary, I am of the view that:
1.Where harshness is a characteristic of conditions in prison which impact on a particular individual, it may be taken into account on sentence, and
2.Harshness resulting from conditions in prison where the prison is functioning as it ordinarily should will be taken into account if the conditions under which the offender is to serve the sentence of imprisonment are more onerous than, the affect on and the conditions undergone by other prisoners. In those cases where a prison is not functioning as it ordinarily should then harshness should be taken into account when the justice of the case requires it.
3.By taking the harshness of conditions in prison into account when sentencing, a Court is not encroaching on the role of the executive to manage prisons. Rather the Court is simply but importantly taking into account and considering information, sometimes obtained from the relevant government department in charge of prisons, to enable it to carry out its function of sentencing.
4.Harshness resulting from conditions of imprisonment has long been a recognised principle of sentencing. Although harshness is not expressly referred to in the Sentencing Act it is nevertheless proper to take it into account when sentencing an offender under the Sentencing Act because it is a factor which bears upon the impact which a sentence of imprisonment will have upon an offender.
5.Courts require evidence to make findings on prison conditions and harshness in a particular case. Past conditions are matters of fact and should not be too difficult to decide. However, findings on future conditions, being prognostications, are particularly difficult. Nevertheless Courts must do the best they can having regard to evidence.
6.All of that necessarily applies to cases involving children with necessary modifications applying the provisions of the YO Act [102].
The relevant conditions in which juvenile offenders were detained at Hakea were summarised in The State of Western Australia v JAB, Wilson v Minister for Corrective Services and by McKechnie J in B (a child) v Hepple [2013] WASC 303. The respondent accepted that the conditions endured by the appellant were materially the same as those referred to in those cases.
The magistrate correctly accepted that the harshness of the conditions at Hakea was a relevant consideration. However, he discounted that consideration in respect of the appellant because he was of the view that detainees would be returned to Banksia by the end of July. There was no evidence to support this conclusion.
In fact the detention management report stated that there was no certain date for the return of juvenile offenders to Banksia Hill, although it was anticipated that there might be progressive re‑housing from mid May 2013. That date had, of course, passed by the date of sentencing. Later in the report there was a reference to the need for work on damaged units to be completed by 4 July 2013 before detainees could be re‑housed. None of this supported a conclusion that the appellant would not serve the two month sentence of detention at Hakea.
On the information before the magistrate there was no certain date by which it could be said the appellant would be returned to Banksia Hill (if at all). There was a distinct likelihood that any transfer would be delayed and that the additional two months of detention would be served at Hakea. As it ultimately transpired no juvenile detainees were re‑housed to Banksia Hill until early September 2013.
The magistrate failed to take into account the likely harshness of the conditions of detention in imposing the sentence of two months detention because he made a prediction regarding the completion of work at Banksia Hill that was unsupported by evidence. The respondent accepts that this was an express error and that the sentence imposed by the magistrate should be set aside and the appellant re‑sentenced.
Ground 1 - Parity
The parity principle is explained by Gibbs CJ in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).
The question is whether a disparity in sentence is capable of giving rise to a justifiable sense of grievance: Lowe v The Queen (610). Whether there is a justifiable sense of grievance has to be determined objectively and by reference to the application and effect of other relevant sentencing principles, including the totality principle: Nguyen v The State of Western Australia [2009] WASCA 8 [27].
The principle of parity was considered again by the High Court in Green v The Queen[2011] HCA 49; (2011) 244 CLR 462. The majority (French CJ, Crennan & Kieffel JJ) referred to the need for reasonable consistency in sentencing, independently of whether offenders were strictly co‑offenders. They said:
General concepts of 'systematic fairness' and 'reasonable consistency' in sentencing, as an aspect of the administration of ... criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is 'consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence'. That kind of general consistency is maintained by the decisions of intermediate courts of appeal [29].
The majority then went on to say that the foundation of the parity principle lies in equality before the law and requires consideration of substance rather than form. This means that comparisons are not limited only to those cases where offenders are charged with the same offence. There may be practical difficulties in comparing sentences of co‑offenders charged with different offences but this does not exclude the operation of the parity principle [29] ‑ [30].
In the present case the appellant submits that the sentence imposed on him was inconsistent with sentences imposed on other juvenile offenders in identical circumstances. Details of sentences imposed on eight other offenders were provided. They were all charged with offences of damage occurring on the day of the riot at Banksia Hill. They were aged between 14 and 17 years at the time of the offence. All but two of the offenders were dealt with under s 67 or under s 46 of the Sentencing Act and no penalty was imposed. The two offenders who received cumulative terms of detention of seven days and five days respectively were described as ringleaders or instigators of the riot and had been responsible for substantial damage. One other juvenile had received a sentence of one month's detention cumulative and that sentence is subject to a pending review under s 40 of the Children's Court Act.
Whether or not it could be said that all of the juveniles were co‑offenders, there does appear to be some basis for concluding that the sentence imposed on the appellant is inconsistent with those imposed on others in materially similar circumstances. This is likely to give rise to a justifiable sense of grievance. However, it is impossible to reach a conclusion in this regard as the personal circumstances of each of the other juveniles is not known.
Ground 3 - Manifest excess
To determine whether a sentence is manifestly excessive it must be viewed from the perspective of the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
The maximum penalty for criminal damage (other than by use of fire) is 10 years' imprisonment. The summary conviction penalty is 3 years' imprisonment and $36,000.
Any sentence on the appellant needed to take into account the objects and principles of juvenile justice under the Young Offenders Act. These principles reflect the long established understanding that the community is best protected from young offenders by determined efforts to bring about their rehabilitation. Detaining a young person in custody is a last resort penalty. A court is proscribed from imposing a custodial sentence unless satisfied that there is no other appropriate way to dispose of the matter.
The offence of criminal damage covers a broad range of conduct. It could not be said that a sentence of two months' detention is necessarily inappropriate for offences of this type. Much depends upon the seriousness of the particular offence.
In this case the appellant submits that the information before the court did not suggest that the appellant presented or made any threat to correctional staff. Nor was there anything to suggest that he encouraged or incited other detainees. It was not suggested that he was an instigator or ringleader. The damage does not appear to have been extensive. But for the fact that the damage occurred in a custodial context it is not an example of this offence that would be expected to attract a custodial term.
The context is obviously significant because the maintenance of discipline in a detention centre is of great importance. But not all damage done within a prison or detention centre represents a significant or serious threat to authority. It is difficult on the very brief facts that were provided to the Magistrates Court to reach any conclusion as to whether this offence was aggravated because it occurred in circumstances where the appellant was participating in the riot. In these circumstances I am unable, and it is unnecessary, to reach a conclusion as to whether this sentence was manifestly excessive.
Re-sentencing
This appeal was heard on an urgent basis. By the time the appeal was heard and determined the appellant had already served a significant portion of the two month sentence of detention. It was no longer appropriate to impose a term of detention and make it concurrent with the sentence that had already been served. Both parties submitted that the appropriate course was to impose no penalty under s 67. I am satisfied that that is the appropriate course bearing in mind the factors I have referred to above.
Accordingly, the orders made at the hearing of the appeal were as follows:
1.extension of time to appeal granted.
2.leave to appeal on ground 2 granted.
3.appeal allowed.
4.sentence of 2 months' detention set aside; and
5.in lieu thereof no penalty be imposed pursuant to s 67 of the Young Offenders Act.
6
1