R v WBR

In this case an adult offender appealed against a sentence imposed for an offence committed as a child. The Court of Appeal held that the sentencing judge erred in treating the offender as an adult rather than as a child, which is the general rule when sentencing an adult offender for a child offence in accordance with s 134 Youth Justice Act 1992. In reaching this conclusion, McMurdo JA (with whom Fraser and Morrison JJA agreed) considered that s 140 and s 141 Youth Justice Act 1992, which contain defined exceptions to the general rule, had no application in this case. Leave to appeal was granted. The appeal was allowed. The adult offender was resentenced to a detention order and released immediately.

Fraser and Morrison and McMurdo JJA

29 April 2022

Background

The applicant was found guilty of an offence. [3]. The applicant had been 17 years and nine months of age at the time of the offence. [3]. However, the proceeding for the offence did not start until after he had turned 19 years of age. [20]. The applicant was 20 years of age at the time of sentence. [4].

Whether the applicant should have been treated as a child or an adult

Part 6 Div 11 Youth Justice Act 1992 deals with child offenders who become adults. [9]. A child offence is defined as an offence committed by a child: see s 132. [10]. An offender is a person who committed an offence as a child and since committing the offence has become an adult: see s 132 (an “adult offender”). [10]. Subject to Div 11, an adult offender must be treated as a child in relation to a child offence: see s 134. [10]. Division 11 then sets out defined exceptions two of which were considered by the Court: s 140 and s 141. [11], [14]. Section 140(1) relevantly states:

“140 When offender must be treated as an adult

(1) If 1 year has passed after an offender has become an adult—

(a) a proceeding afterwards started against the offender for a child offence must be taken as if the offender were an adult at the time of the commission of the child offence; and

(b) if found guilty in the proceeding – the offender must be sentenced as an adult. …”

The proceeding for the offence started a year after the applicant had become an adult, which engaged subsection (1). [12]. However, subsection (1) is “subject to” subsection (4), which creates an exception in circumstances where there is undue delay on the part of the prosecution. [13]. Whilst the respondent conceded that subsection (4) applied in the circumstances of this case, which had the effect of making subsection (1) inapplicable, it was submitted that the sentencing judge should have been taken to have proceeded under s 141. [15]. Section 141 states:

“141 When offender may be treated as an adult

(1) This section applies if—

(a) a proceeding has started against an offender for a child offence in the way provided in this Act for a child (the childhood proceeding); and

(b) by the time 1 year has passed after the offender becomes an adult—

(i) the childhood proceeding has not been completed to a finding of guilty or not guilty; and

(ii) the offender, for another offence—

(A) is proceeded against as an adult; or

(B) has been sentenced as an adult.

(2) The court hearing the childhood proceeding may decide to continue the proceeding as if the offender were an adult when the child offence was committed.

(3) For subsection (2), the Childrens Court may continue the proceeding in its concurrent jurisdiction.

(4) If the offender is found guilty, the offender must be sentenced as an adult.

(5) This section applies despite section 140(2).”

Justice McMurdo (with whom Fraser and Morrison JJA agreed) did not accept that s 141 applied in the circumstances of this case. [17]. Whilst the applicant had been “proceeded against” as an adult for “another offence” it did not necessarily follow that s 141 applied. [18]. The “unambiguous text” of s 141 confines its operation to circumstances where the offence committed as a child has been instituted before the adult offender turns 19 years of age. [18]–[21].

It was held that s 140 and s 141 Youth Justice Act 1992 had no application as the proceeding for the offence had been instituted after the applicant turned 19 years of age. [20], [22]. Therefore, the primary judge erred in not treating the applicant as a child as required by s 134 Youth Justice Act 1992. [23]. The sentencing discretion miscarried on this basis. [23].

Disposition

Leave to appeal was granted. [26]. The appeal was allowed. [26]. The applicant was resentenced to a detention order under the Youth Justice Act 1992 and released immediately. [26].

D Kerr