Saylor, David --- "Co - existence - Negotiation and Certainty (Preface and Executive Summary)" [1997] IndigLawB 48; (1997) 4(2) Indigenous Law Bulletin 14

• Three Strikes By The Burglar: The Police V Dcj (A Child)
• The Decision
• Reasons For Decision
• Government Response

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Three Strikes by the Burglar: The Police v DCJ (a child)

The Police v DCJ (a child)

Children’s Court

Unreported

President Alan Fenbury

10 February 1997

Casenote by David Saylor

This was the case of a 14 year old Aboriginal boy from Broome, appearing before the President of the Children's Court in Perth. The defendant had pleaded guilty to the offence of burglary on 'a place ordinarily used for human habitation'. The offence fell, for sentencing purposes, within the recently amended s401 of the Criminal Code 1902 (WA). Section 401 provides for a mandatory minimum term of 12 months imprisonment for adults and, in the case of juveniles, a minimum of 12 months imprisonment or detention when a repeat home burglar is convicted of a third burglary offence on 'a place ordinarily used for human habitation'. This new law is referred to as the 'three strikes and you're in' legislation.

The decision

The President sentenced the defendant to 12 months detention, with a further order that he be placed on a Conditional Release Order under s101 of the Young Offenders Act 1995 (WA). The President held that when the Children's Court is sentencing a juvenile repeat home burglar under s401, and a mandatory term of detention is relevant, the Court can instead place the juvenile on a Conditional Release Order. His Honour considered that this was an appropriate case for the offender to be sentenced to a Conditional Release Order for reasons which included his age, that he had already been remanded in custody for 42 days, that he had never received a term of detention nor had he been placed on a Conditional Release Order previously, and that he was thousands of kilometres away from his family.

Reasons for decision

Section 401(5) of the Criminal Code specifically excludes suspended sentences of imprisonment as a disposition for repeat home burglar adult offenders. A suspended sentence of imprisonment forms part of the sentencing regime for adult offenders under the Sentencing Act 1996 (WA). Under this sentence an offender is sentenced to a term of imprisonment, and the Court can order that the term of imprisonment be suspended for a period of time not exceeding 24 months. A suspended sentence may be imposed by a Court of Petty Sessions, the District Court or Supreme Court, and in some cases the Children's Court. The Children's Court sentencing regime is, however, vastly different, and is governed largely by the Young Offenders Act 1994 (WA). Under Division 7 of the Young Offenders Act, the Children's Court can impose on a juvenile offender an Intensive Youth Supervision Order. This order can be made with or without a sentence of detention. An Intensive Youth Supervision Order with a sentence of detention is referred to as a Conditional Release Order.

If a Conditional Release Order is imposed, the Children's Court sentences a juvenile offender to a term of detention, but makes an order that the defendant be released and be supervised in the community: s101 Young Offenders Act.

If the order is breached by re-offending or non-compliance, the offender runs the risk of completing the duration of the order in a detention centre.

His Honour stated that whilst suspended sentences and Conditional Release Orders contained a similar feature, in that the defendant does not 'go inside,' they are vastly different in character. A Conditional Release Order requires that the defendant be under intensive supervision whilst released, whereas a suspended sentence of imprisonment does not require supervision. His Honour noted that the Young Offenders Act does not refer to suspended sentences for juvenile offenders.

Section 401, the President indicated, does not exclude a Conditional Release Order as a sentencing option for juvenile offenders either expressly or by implication. His Honour turned to the well established expressio unius rule to assist in the interpretation of s401. Essentially, this rule is that if Parliament had meant to include a particular thing within the scope of its legislation, it would have referred to that thing expressly. As Parliament did not specifically exclude a Conditional Release Order as a sentencing option under s401 for repeat home burglar juvenile offenders, the Children's Court could infer that Parliament did not intend to exclude a Conditional Release Order as a sentencing option.

The President examined two points. First, the nature of Children's Court jurisdiction. The focus of the Young Offenders Act is on rehabilitation: see ss7, 46 and 120. Second, when interpreting penal statutes, '... Courts should be loath to extend meaning of unclear statutes, to cover possible Parliament inadvertence, when the stakes are at the level they are in this particular case'.

The President considered that the Young Offenders Act must have been in the mind of Parliament when s401 of the Criminal Code was amended'. He noted that s401 refers to the Young Offenders Act.

Further, as the Young Offenders Act is relatively recent legislation, proclaimed in March 1995, Parliament did not intend that the Children's Court should ignore the spirit of the Young Offenders Act: 'Parliament did not oblige the court to sentence a young offender to at least 12 months detention notwithstanding any other written law' (p 5). Therefore, in appropriate situations, a juvenile offender convicted of a third burglary on a place ordinarily used for human habitation can be sentenced to detention, but be released on a Conditional Release Order.

His Honour considered that Parliament would not have intended to ignore the United Nations Convention on the Rights of the Child, and in particular article 37, which states 'every child deprived of liberty shall have the right to maintain contact with his or her family through correspondence and visits'.

Government response

The Attorney-General was quick to denounce the decision of the President on the 6 o'clock edition of ABC Radio News in Perth, and stated that the Government would move quickly to amend the legislation. The Attorney-General's Department has drafted a Bill, as yet unavailable, which is due to be tabled soon in the Western Australian Parliament. This response is disappointing and unacceptable, given that the current government has made warm and friendly assurances that they have implemented most of the recommendations of Royal Commission Into Aboriginal Deaths in Custody ('the RCIADIC'): see the Government of Western Australia's 1995 Implementation Report, especially pp 56-60, 98-100 and 276-295. It is extremely disappointing, and contrary to the spirit of the RCIADIC recommendations, that the defendant's Counsel were forced to resort to legal argument so that an appropriate sentence could be considered.

It must be noted that recommendation 92 of the RCIADIC states that governments should legislate to ensure that imprisonment is truly used as a sentence of last resort. The Western Australian Government response in 1995 was that recommendation 92 was implemented through the relevant sections of the Criminal Code, the Young Offenders Act and the recently proclaimed Sentencing Act (see the 1995 Implementation Report, pp 98-99). Furthermore, s 401 is contrary to the spirit of recommendation 62 of the RCIADIC, which the current government also claims to have implemented (ibid, pp 56-60).

The danger of this law is that it precludes a court from exercising its discretion when considering an appropriate sentence. The legislation is extremely dangerous for Aboriginal people. Since the inquiry into Deaths in Custody, it is now well accepted that Aboriginal incarceration rates are at an unacceptably high level. Section 401 will have dangerous consequences for Aboriginal children, especially those in remote areas of Western Australia. If a mandatory sentence of detention is imposed by the court, a juvenile offender must serve that sentence in a juvenile detention centre-and they are all located in Perth. Aboriginal children from remote areas and with a customary lifestyle will be separated from their community, family and culture. Mandatory detention will prove to have lethal consequences and neglect any true form of culturally-appropriate rehabilitation. Offenders who would ordinarily be placed on a Conditional Release Order now run the risk of mandatory incarceration, notwithstanding any substantial mitigating factors.

Western Australia's Indigenous incarceration rate is at an unacceptably high level (see Aboriginal and Torres Strait Islander Social Justice Commissioner: Third Report at p 19 and Aboriginal Contact with the Criminal Justice System in WA, Broadhurst et al 1995). This legislation has the potential effect of increasing those levels, and in turn possibly leading to more Aboriginal deaths in custody.