R v SDW

In this case the Court of Appeal held that before imposing a detention order in relation to the applicant, a child, the sentencing judge did not comply with the requirements of ss 208 and 209 Youth Justice Act 1992 by considering and rejecting all non-custodial sentencing options, which in the circumstances of this case, were “reasonably available” (per Mullins P and Bond JA) or “appropriate for consideration” (per Crow J). The Court reiterated that ss 208 and 209 Youth Justice Act 1992 prescribe a process of reasoning that must be followed before imposing a detention order as the “only appropriate sentence”. To the extent that the prescribed process of reasoning is not followed and explained in the sentencing remarks, the sentencing discretion will miscarry. Leave to appeal was granted. The appeal was allowed. The applicant was resentenced.

Mullins P and Bond JA and Crow J

2 December 2022

Background

The applicant, a child, sought leave to appeal against a head sentence of 15 months’ detention to be released after serving 50 per cent of the detention period. [2]–[7]. One of the grounds of appeal was that the sentencing discretion miscarried because the sentencing judge failed to explain in his Honour’s remarks why “other reasonably available sentencing options were not taken before imposing sentences of detention” in accordance with ss 208 and 209 Youth Justice Act 1992. [7].

A presentence report had been ordered in respect of two of the three indictments presented against the applicant. [12]. The presentence report identified that the following sentencing options were open: a restorative justice order; a probation order; a community service order; a combination order; a conditional release order; and a detention order. [12]. However, a restorative justice order was not open at the time of sentence because the applicant was unwilling to comply with such an order. [13].

Whether the sentencing judge complied with ss 208 and 209 Youth Justice Act 1992

The majority (Mullins P and Bond JA) observed that s 208 Youth Justice Act 1992 prescribes a process of reasoning. [16]. The majority explained:

“… [T]he Youth Justice Act [1992], and in particular ss 208 and 209, should be construed as requiring sentencing judges to follow a particular methodology. A sentencing judge cannot make a detention order for a child without first considering all other available sentences in the way that the law requires … the sentencing judge must express his or her reasons in court in a way which explains how that ultimate result was arrived at by the application of the proper reasoning process.” [17].

In the circumstances of this case there were four sentencing options reasonably open other than a detention order. [18]. To comply with s 208 Youth Justice Act 1992 the detention order could not be imposed unless the sentencing judge had considered and rejected each of the four sentencing options which were reasonably open. [18]. The sentencing judge, to comply with s 209 Youth Justice Act 1992, must have then explained this reasoning process, which ought to have included the reasons for rejecting the sentencing options which were reasonably open. [18].

Whilst the words “reasonably available” do not appear in s 208 Youth Justice Act 1992, the word “reasonably” is necessary to “communicate that the word ‘available’ should be construed as meaning suitable or appropriate for consideration.” [19]. In an extreme case, sentencing options which might be “open” might be so obviously unsuited to the circumstances that they should not be regarded as “available”. [19]. To the extent the sentencing judge did not comply with ss 208 and 209 Youth Justice Act 1992 the sentencing discretion miscarried. [26]–[28].

Justice Crow agreed with the majority in the result, however, disagreed that imputing the word “reasonably” is necessary when construing the meaning of “available” in s 208 Youth Justice Act 1992. [51]. A construction more consistent with the text of s 208 when read in context with s 150(2)(e) is that the word “available” means a sentencing option that is “appropriate for consideration”. [52]–[55]. This is consistent with the construction suggested by the majority, but without the unnecessary imputation of a word that departs from the text. [55].

Disposition

In the result, leave to appeal was allowed, the appeal was allowed, and the applicant was resentenced. [10]–[11], [50].

D Kerr