WW (a child) v WILLIAMS - [2013] WASC 363

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…

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.

Continue reading WW (a child) v WILLIAMS

Details

AGLC: WW (a child) v WILLIAMS [2013] WASC 363
Case: [2013] WASC 363
Decision Date: 3 OCTOBER 2013

CaseChat Overview and Summary

The case before the court involved an appeal by the respondent against a sentence of detention imposed upon him for an offence of criminal damage. The matter was heard in the Supreme Court of South Australia. The appellant, who was a child at the time of the offence, sought to challenge the severity of the sentence, arguing that the court had failed to adequately consider the harshness of the detention conditions and that the sentence was manifestly excessive and breached the parity principle.

The legal issues before the court included whether the trial judge had failed to take into account the harshness of the conditions under which the detention would be served, whether the sentence was manifestly excessive, and whether the sentence breached the parity principle. The court needed to determine if the sentence was unjust and disproportionate in light of the nature of the offence and the circumstances of the offender.

The court found that the trial judge had not adequately considered the harshness of the detention conditions, which was a significant factor in determining the appropriate sentence. The court also determined that the sentence was manifestly excessive given the nature of the offence and the offender's age. Furthermore, the court found that the sentence breached the parity principle as it was disproportionate compared to sentences imposed for similar offences. As a result, the court allowed the appeal, quashed the sentence of detention, and ordered the respondent to be re-sentenced.

Orders