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Supreme Court of Western Australia – Court of Appeal (Steytler P, Wheeler and McLure JJA)
26 May 2005
Criminal law and procedure — very young aboriginal offenders — sentencing — sentencing principles under the Young Offenders Act 1994 (WA) — detention as a last resort — diverting young offenders from the Court — breach of previous orders — rehabilitation — responsibility of the Court to satisfy itself that all reasonable steps have been taken towards rehabilitation — regional areas — limited resources
In March 2005, the two 13 year old appellants pleaded guilty to a number of offences, including aggravated armed assault with intent to rob. Both appellants had prior convictions for offences including aggravated burglary in custody and assault. Their home lives were described as ‘chaotic’, and lacking parental support and guidance. The appellants had previously breached more than one intensive youth supervision order with detention (‘CRO’).
Section 120(2) of the Young Offenders Act 1994 (WA) requires the court, when imposing a custodial sentence on a young person, to provide written reasons explaining why it considers that there is no other appropriate way to dispose of the matter.
The trial judge, the President of the Children’s Court, imposed custodial sentences of five and six months, respectively. The appellants sought leave to appeal against these sentences on the basis that the President made two errors.
The appellants argued, first, that the President erred in law by failing to give such reasons in respect of each sentence. Second, the appellants argued that the President erred in concluding that detention was the only appropriate disposition.
1. Section 120(2) of the Young Offenders Act 1994 (WA) reflects the principle that juvenile detention should only be used as a last resort: [6].
2. In order to comply with s 120(2), it is not necessary for the court to expressly state that it has considered alternative dispositions, provided that the sentencing remarks make it clear that no other disposition is considered to be appropriate: [9].
3. In this case, the President faced a difficult sentencing decision. The decision to impose a custodial sentence reflected the seriousness of the offences in question and the history of breached supervision orders. However, the imposition of the original sentence did involve an error of principle: [42].
4. First, the President failed to sufficiently address whether there was any prospect of rehabilitation on the part of the appellants. Secondly, he failed to consider the seriousness and the significance of the offences for which the appellants had earlier been placed on CROs: [57].
5. Very young offenders are likely to have limited insights into the seriousness of their offending, and are not to be expected to be capable of organising their own rehabilitation. Before concluding that a very young offender has limited prospects of rehabilitation, the court must satisfy itself that all reasonable steps have been taken and have failed: [53].
6. Aboriginal youth face unique difficulties within the criminal justice system. They are over-represented in the courts and in detention. Where an accused has been before the court or held in detention previously, decision-makers may tend to assume that they are serious offenders. To determine whether such an assumption is justified, and it is critical for the court to closely examine the circumstances surrounding past offences, at each stage of the progress: [58]–[62].
7. The formal processing of children may be especially prevalent in country towns which lack social support services. However, the Young Offenders Act 1994 (WA) is not welfare legislation, and dealings with children before the Children’s Court requires reference to sentence principles within the confines of the Act, and not the exercise of welfare-oriented discretion: [62].
8. In this case, the President had materially overstated the antecedent offences committed by the appellants. The trial court could not have been properly satisfied that the appellants’ history of offending was such that the point has been reached where the protection of the community required detention rather than further rehabilitation: [64]–[65].
9. Although neither of the appellants were first offenders, it was incorrect to regard their most recent offences as merely a continuation of an already established pattern: [66]. The President therefore erred in applying a ‘broad brush’ approach in his characterisation of the appellants’ previous offending: [72].
10. When sentencing children, it is particularly important to ‘advert expressly to the basic principle’ of the Young Offenders Act 1994 (WA) – that a custodial sentence should be the last resort and the prospect of rehabilitation may make a different disposition appropriate: [73].
1. These are applications for leave to appeal against sentence. On 30 March this year, both appellants pleaded guilty in the Children’s Court to a number of offences, and were sentenced to a head sentence of 6 months’ detention. The most serious offence in respect of each appellant was an aggravated armed assault with intent to rob, for which WO received 5 months’ detention and RM 6 months. The complaint alleges this offence to have been pursuant to ‘s 393(c) & (d)’ of the Code: it cannot be both, as the circumstances and penalties are different. However, the complaint is worded in terms of s 393(c), which carries a statutory maximum penalty of life imprisonment. The next most serious offence was stealing a motor vehicle and driving recklessly, for which 3 months’ detention was imposed.
2. Each appellant had also breached more than one intensive youth supervision order with detention (‘CRO’) imposed in respect of a variety of offences which, in each case, included aggravated burglary, breach of protective bail conditions, common assault, loitering, and stealing offences. WO in addition had a CRO imposed in respect of possession of a prohibited weapon and receiving, while RM had had such an order imposed in respect of burglary. There was significant commonality between the offending the subject of the CROs in relation to each child, and there were also offences which each had committed separately, although the offences tended to be of a similar type. In each case, there was on 30 March a penalty of detention imposed in respect of the breach of the last of the CROs, being a term of 6 months in respect of WO and 5 months in respect of RM, with no further punishment being imposed pursuant to s 67 of the Young Offenders Act 1994 (WA) (‘the Act’) in relation to breach of the certain orders.
3. Each appellant therefore had effectively a term of 6 months’ detention imposed. The term was to run from 4 and 2 March, the two appellants having been in custody from those dates respectively. Each appellant usually lived in South Hedland. Each appellant was Aboriginal. Each appellant was but 13 years of age and presented physically as a young 13-year-old, being relatively slight and small in stature. There are effectively two grounds of appeal, the grounds having been amended by leave at the hearing of the appeal. The first can be dealt with relatively briefly.
4. It is submitted that his Honour erred in law in that he failed to give reasons, in respect of each sentence of detention, why he considered that there was no other appropriate disposition. Section 120(2) of the Act provides:
(2) A court that imposes on a young person a custodial sentence is to record in writing the reasons why it considers that there is no other appropriate way for it to dispose of the matter.
5. In practice, since sentencing remarks are generally recorded and transcribed, the transcript is the record of the reasons and only on occasions in non-metropolitan areas would it be necessary for a judicial officer personally to record in writing, or to ensure that a written record was kept, of his or her reasons.
6. The requirement in s 120(2) is no doubt a reflection of the importance of the principle of juvenile justice which is enunciated in s 7(h) of the Act, which is to the effect that detaining a young person in custody for an offence should only be used as a ‘last resort’. The nature of a custodial disposition as a last resort is reinforced by s 120(1), which provides that the Court ‘cannot impose any custodial sentence unless it is satisfied that there is no other appropriate way for it to dispose of the matter’. That appears to us to be another way of saying that a custodial disposition is a ‘last resort’.
7. However, s 120(2) is puzzling. Every Court sentencing an offender is required to give reasons for that sentence. The reasons need not be elaborate, but must, in every case, be sufficient to enable the offender, and the public, to understand why that sentencing disposition was chosen and to preserve to the offender the right of appeal. In a context where a sentence of imprisonment is a last resort (as it is both for children and for adults, although the principle has greater weight in respect of the former), those sentencing remarks will always be deficient if it is not possible to discern from them why a sentence of detention or imprisonment, as opposed to some other disposition, was selected.
8. As a general rule, then, it is likely that sentencing remarks which fail to comply with s 120(2), in that they do not make it clear why a custodial disposition was selected, would be deficient in any event. However, because of the great weight which the principle that a custodial disposition is one of last resort has in relation to juvenile offenders, it may be that the effect of s 120(2) is to require a Court to make it very clear that consideration has been given to a non-custodial disposition, even in the case of the most serious of offences.
9. In the present case, although the learned President of the Children’s Court did not expressly state that he had considered alternative dispositions and did not, as a separate strand in his sentencing remarks, explain why he considered there was no other appropriate disposition, it is clear from what he did say why it was that he considered that there was no other appropriate disposition. In our view, his Honour’s reasons therefore adequately comply with s 120(2) (cf Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [30]).
10. His Honour discussed the personal circumstances of each appellant, to which we will turn shortly. It seems clear enough that his Honour accepted that both children had, in different ways, dysfunctional and difficult backgrounds. Each was totally dependent on adults who, for one reason or another, were not assisting them to change their behaviour. However, his Honour was also very much concerned with the fact that there had been previous CROs which had not been able to effect any positive change, let alone any rehabilitation. Shortly prior to adjourning to consider what was the appropriate disposition, his Honour had said to counsel for one of the children that:
One of the things that concerns me is that absent intervention that is properly resourced, then kids like this can just go from really bad to worse and before you know it, they might end up spending the greater part of their formative years in detention, which is clearly undesirable. (Transcript page 32)
His Honour added:
So it’s one of those situations where people in institutions come to be judged on how they cope with the hard cases and at the moment, if these two represent hard cases, then the - the system’s not coping too well. (Transcript page 32)
11. Against that background, when his Honour came to sentence the two appellants, his observations to each of them stressed that the assault with intent to rob was a ‘very, very serious’ offence, that the driving offence was also serious, and that each appellant had repeatedly breached the previous CROs upon which he had been placed. His Honour stressed, in that context, the importance of protection of the community from offending of the kind which had occurred in relation to the assault with intent to rob.
12. In summary, his Honour was indicating that the seriousness of the offences suggested that a term of imprisonment would be appropriate, that the appellants’ past offending suggested that rehabilitation was unlikely, and that protection of the community therefore became an important and perhaps dominant factor.
13. The issue raised by the second of the grounds of appeal is whether his Honour was correct. It was not entirely clear whether in the amended grounds filed by the appellants there are but two grounds, with the second being developed by pars 2–6 of the notice, or whether it is intended to rely upon six discrete grounds. It seems to us the former is more likely the case. Essentially, pars 2 through to 6 of the amended grounds assert that his Honour erred in concluding that detention was the only appropriate disposition, and the particulars of that assertion are that his Honour erred in placing primacy on personal deterrence and protection of the community and erred in imposing a custodial sentence in respect of the breach of the CRO on the basis that, ‘you broke your promise really soon after you … made it’ (transcript page 47). Consideration of this ground requires an understanding of the details of the various offences of which the appellants have been convicted, and of their personal circumstances.
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37. In short, although their problems are different in some respects, both RM and WO have chaotic home lives and lack the parental support, discipline and guidance which enables children to understand that their behaviour is unacceptable and, more importantly, to understand why their behaviour is unacceptable. Their families have been unable to assist them in co-operating with the various welfare agencies and it is not surprising in that context that they have had difficulty in complying with the orders made against them.
38. Before the President, the advice from the Juvenile Justice representative and from the representative of the Department of Community Development was along the following lines. It was said on behalf of Juvenile Justice, that because the orders made had unfortunately been breached at a fairly early stage, those orders had not had the opportunity to take effect. Unfortunately, some of the transcript in this respect is indistinct, but it is clear that it was suggested to his Honour that it would be desirable for Juvenile Justice to have a further opportunity to work with each of them and that it would be possible for Juvenile Justice to ‘engage them a bit better and hopefully prevent them from reoffending’. So far as RM was concerned, it was also suggested to his Honour that there was some prospect for improvement since his mother’s circumstances had changed somewhat; her de facto had apparently found employment again and that relationship had become less violent and more stable, so that his mother might be able to give more attention to RM.
39. The Department of Community Development representative suggested that it might well be the case that each of the appellants would meet the criteria which apply in determining whether a child should be apprehended and that, in any event, he would be contacting the relevant case managers and suggesting that they ‘take a closer look at … both these cases’.
40. It is impossible not to sympathise with his Honour. He faced a very difficult sentencing decision. There were two offences which, on their face, were of relative seriousness, and a history of breach of CROs. He was faced with two young offenders whose home lives did not hold out any great prospect of their being guided or directed out of their offending. To the extent that programmes had been attempted to work with the offenders and their parents in the past, they had apparently been unsuccessful. His Honour was, of course, aware that there are fewer such programmes, fewer options and fewer resources in country areas such as South Hedland, in any event, and it was clear that work with the offenders had been hampered as a result.
41. Finally, there must have been present in the President’s mind, the fact that young offenders are generally unimpressed by what is said to them, and learn from the consequences of their behaviour rather than from being told how they should behave. There was, and is, a real risk, having regard to the breaches and reimposition of supervision orders on numerous occasions (and to a lesser extent the imposition and breach of bail conditions) that what these two appellants were learning from their visits to court was when you offended, you went to court, people talked to you and you had to promise to behave, but that nothing else ever happened. Not infrequently in this Court, it is the experience of sentencing relatively youthful offenders that they have a long history of the imposition and breaching of supervision orders in the Children’s Court. Such offenders have learnt that no consequences flow from their offending, and that lesson may have helped to entrench their offending behaviour.
42. Against that background, one can see how, pragmatically, the President might well have formed the view that a shock, in the form of a sentence of detention, would bring home to these offenders the seriousness of their offending and might bring home to their families the need to put some effort into preventing them from offending further. His view that some new approach was needed is, we think, apparent from his comments which we have quoted at par [10]. Despite the pragmatic attractions of that approach, it is our view that it did involve an error of principle, for a number of reasons which we now attempt to explain. …
43. … When a young offender comes to be sentenced for a serious offence, the sentencing principles will be different, depending upon whether that young offender has previously been found guilty of an offence for which a custodial sentence was imposed on two or more occasions, and whether the Court is satisfied that the young offender is likely to reoffend. In those circumstances, the Court is required to give ‘primary consideration’ to the protection of the community, and may make a special custodial order.
44. There is, then, a stark distinction between two categories of young offenders who commit serious offences. Those who have twice received custodial sentences are to be considered such a threat to the community that its protection is the paramount sentencing consideration. Having regard to the structure of the Act, that departure from the principles governing the sentencing of other young offenders is justified on the basis that, before that Division can apply, a Court will have on two prior occasions reached the view that the time of ‘last resort’ has been reached.
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45. There is in the Act a very strong emphasis on the diversion of young offenders from the courts, and there are available ways of dealing with young offenders which either would not require a court attendance or which would not result in anything resembling a conventional sentence. The two principal mechanisms are cautioning and referral to a Juvenile Justice Team.
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52. Underlying the emphasis upon rehabilitation within the Act, is the long established understanding that the community is best protected, in relation to young offenders, by determined efforts to effect their rehabilitation. …
53. In this context, it is important to note the obvious fact that very young offenders, such as these appellants, are necessarily likely to have limited insight into the seriousness of their offending, and are not to be expected to be capable of organising their own rehabilitation. In relation to adult offenders, their prospects for rehabilitation may often be gauged by having regard to what steps, if any, they have taken towards that end, whether by making restitution, embarking on various counselling programmes, or the like. With young offenders, their prospects for rehabilitation are much more closely bound up with what either their parents or responsible agencies are able to organise, and it will be important for a Court, before concluding that a very young offender has limited prospects of rehabilitation, to satisfy itself that all reasonable steps to that end have been taken and have failed before putting aside the prospect of rehabilitation.
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54. Various provisions of the Act not only refer to the desirability of responsible adults being involved with young offenders, but provide some avenues for the Courts to involve them. …
55. It is, of course, as a practical matter important for the Court to avoid acting in a way which might lead to a serious rift between parent and child, or might perhaps expose a child to abuse. However, these are powers which may be of use in the case of inexplicably uninvolved parents, such as the mother of WO. It is not clear from the materials before us whether any use of these provisions has been either made, or threatened, in this case.
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56. Finally, and particularly relevantly for these offenders, s 46(4) specifically provides that the Court is to consider how young the offender is as a mitigating factor.
57. We have set out that statutory background at considerable length, because it is our view that the learned President erred in failing to address, or to sufficiently address, two issues which emerge from it. The first was the question of whether it was the case that all reasonable steps towards the rehabilitation of these children had been taken, but had failed; or, to put it more positively, whether there was still some prospect of rehabilitation. The second was the question of precisely what was the seriousness and significance of the offences for which they had earlier been placed on the CROs which they breached by the latest offending, and on the earlier orders.
58. To take the second point first, the Act, as we have noted, provides for a wide discretion in dealing with young offenders, even before they come to the Court. In an excellent report prepared by the Crime Research Centre at the University of Western Australia for the Aboriginal Affairs Department in 1995 (‘Aboriginal Youth and the Juvenile Justice System in Western Australia’, January 1996) (‘the CRC Report’), practical issues arising from this discretion are dealt with at some length. It is noted that Aboriginal youth are less likely to be cautioned by police than non-Aboriginal youth. It noted that data showed that cautions issued outside the Perth area varied from region-to-region and from year-to-year, very possibly as the result of changes in police practice in those areas. It suggested that there was strong evidence of wide disparities in police practice across and within regions leading to ‘justice by geography’ (page 6). It noted that factors which inhibited the use of cautioning with Aboriginal youths included inability to demonstrate a stable background and lifestyle, and ‘welfare’ concerns, including alcohol and substance abuse, as well as truancy and disengagement from school (page 16). Those concerns are reinforced by certain observations in a later review, ‘Evaluation of the Young Offenders Act (1994)’ Cant and Downey, February 1998; pages 10, 36.
59. It appears to be the case, then, that the more disadvantaged the young offender, the more likely it is that the offender will appear before the Court rather than being dealt with by way of caution or perhaps referral to the Juvenile Justice Teams. Further, Juvenile Justice Teams may be less effective in country areas even where they are used, especially for Aboriginal children (Cant and Downey, pages 60–6). Relevantly for these appellants, some of their earlier and less serious offending might not have resulted in a court appearance, had their background been less disadvantaged, or had more appropriate alternatives been more readily available.
60. The CRC Report suggests that the dramatic over-representation of Aboriginal youth in the criminal justice system, and particularly in detention, may be a consequence of a sequence of decisions, each of which appears relatively inconsequential at the time, but which compound and become serious retrospectively. Young Aborigines then quickly develop a ‘profile’ of characteristics which identify them as habitual offenders and quickly exhaust whatever diversionary alternatives exist so as to ‘find themselves in danger of custody before anyone around them, and the child him or herself, has fully grasped the seriousness of the situation’ (CRC Report, pages 14–15).
61. One can well see how, in a system in which there is a discretion in police to divert less serious offenders away from courts, those who come before the courts may more readily be presumed to be a more serious category of offenders. In the context of an Act which provides a number of alternatives to formal orders, those offenders against whom orders have been made may be perceived as more serious, and, of course, in the context of an Act with such an emphasis on detention as a last resort, an offender who has been detained will thereafter be perceived as a serious offender.
62. It is critical that, at each stage of that process, the Court should examine, by reference to the detailed circumstances of the prior offences, whether those assumptions are justified. This is particularly so when, as the CRC Report notes, formal processing of children may be prompted by welfare concerns about them, particularly in country towns which lack social support services (page 17). Such action may be seen as a way of precipitating involvement which a child may often need, from relevant social welfare agencies. The Act is not, however, ‘welfare’ legislation. Dealing with a child before the Children’s Court requires reference to sentencing principles, within the confines of the Act, and not the exercise of some less fettered, welfare-oriented discretion.
63. In the case of these two offenders, as we have noted, there were a significant number of offences. However, some of the offences were of a very trivial nature. Others were relatively serious offences, but the circumstances of the offending put it at the lower end of the scale for such offences. In relation to the more serious types of offences, too, these offenders were generally in company with others and sometimes with significant numbers of others. The ages of those others and the influence which they had, and the roles which they played in the offences, are generally unknown.
64. We are sure, looking at the previous offences of these appellants, that they are a cause of distress, concern and anger in the local area. However, it seems to us that his Honour materially overstated the antecedents of each of them by saying that he could look at the record and ‘see several pages of particularly serious offences’ (transcript page 28) and that they had been ‘offending over and over again in serious ways’ (transcript page 32). It is undoubtedly true that each of them had been offending ‘over and over again’, but only some of the offences were of a relatively serious kind, and, as we have noted, the circumstances were far from being at the upper end of the scale for such offences.
65. Although it is not an easy task where a record is relatively complex, as the record of each of these appellants is, it is, in our view, essential that a Court considering the serious step of imposing a custodial term in respect of a young offender, if the offender’s antecedents are to play any part in that decision, satisfy itself that the young offender’s history of offending is such that the point has been reached where the protection of the community requires detention rather than further emphasis upon rehabilitation. The Court must be very astute to ensure that the ‘amplification process’ identified by the CRC Report does not occur, and that a decision which is made in part by reason of the past offending of a young offender is only made after the detail of that past offending has been carefully examined.
66. In the case of these two appellants, the offending by way of assault with intent to rob and the stealing and reckless driving were offences different from those which had been committed previously. The previous offences had largely been offences of minor damage and dishonesty only, and had involved the taking of items of relatively small value. While neither offender was a first offender by any means, it would not be correct to regard the most recent offences as merely a continuation of an already established pattern. Further, the previous ‘pattern’, when carefully examined, reveals a number of less serious offences, at least some of which might well have been dealt with by way of caution or by a Juvenile Justice Team.
67. Turning to the question of efforts at rehabilitation, it is certainly true that the reports in relation to each of these offenders revealed that a number of strategies have been tried to engage their parents, and to engage them with their schooling and to find them more positive ways of spending their time. Although it is clear that individuals of goodwill have devoted a considerable effort to these children, it is also clear from the terms of the reports that there have been some problems of co-ordination between agencies, and some problems of access to resources which could have benefited each of them.
68. The CRC Report refers to a perception, both within and outside relevant agencies, of a lack of clear responsibility for preventative (as opposed to correctional) work (pages 70–2), although it notes also examples of successful interagency work. As the responsible Minister noted when introducing the Bill for the Act, ‘Research and experience … indicates that co-ordination at all levels is the single most important strategy in crime prevention’ (Parliamentary Debates, Legislative Assembly, 12/5/1994, page 361). In the reports relating to these two appellants, there can be seen examples of communication between the Department of Community Development and Juvenile Justice, and significant efforts by individuals within each agency. One can also discern, however, that there has been some difference of view as to the most appropriate (or perhaps the most achievable) strategies, and some lack of co-ordination. Further, since education is an important issue for both appellants, and housing for at least one, it is at first sight odd that there does not appear to be very direct involvement of the Departments of Education and of Housing and Works.
69. There is an obvious tension between the need to deal with a child ‘in a time frame that is appropriate to the young person’s sense of time’ (s 7(k)) and the need of the Court to be fully informed. And, of course, it is not for the Court to adopt a welfare role or itself to suggest some rehabilitation programme. However, the material in the reports before his Honour tends to suggest that further steps could usefully be taken in relation to each appellant, and should, in our view, have led him to make specific inquiries to that effect. In relation to both children, both the oral addresses of the Juvenile Justice and the Department of Community Development representatives seemed to be suggesting to his Honour that they were of the view that there might be strategies yet untried which could result in improvement.
70. In amplification of what was put by the Juvenile Justice officer to the President, there was tendered to us without objection some notes of a conversation which the appellants’ instructing solicitor had had with the South Hedland Juvenile Justice office. A list of nine suggestions, some covering both appellants and some dealing with only one of them, was put forward. Importantly, it was noted that a mentor had recently begun working with Juvenile Justice in South Hedland. She is a Torres Strait Islander liked by the local Aboriginal community and has won the respect of the local children. She would be a culturally appropriate mentor to these two children, who badly lack guidance. Drug treatment and counselling would be made available to them. It was the view of the Juvenile Justice office that the Department of Community Development could play a ‘more proactive’ role, and that also seemed to be the view of the Department of Community Development officer who addressed the President. There is reference in those notes to liaison with the local high school. Those notes suggest that if the President had made inquiries of the two officers before him as to what further steps might be taken, additional information to the effect given to us could have been forthcoming.
71. It appears to us that his Honour did not in his sentencing remarks (which we take broadly to be everything that he said to the two appellants, after the luncheon adjournment, at the time when he was proposing to sentence them) adequately answer the question of what in the circumstances of the appellants, or in the reports provided to him, led him to the view that rehabilitation could serve no further purpose and that it was therefore necessary to place the appellants in detention. It appears to us that he may have been unduly influenced by the suggestions in the reports that such intervention as had been attempted in the past had not been adequately resourced. That appears from the remarks that we quoted earlier, that in the absence of such intervention ‘kids like this can just go from really bad to worse’. In taking that view, he overlooked the possibility discussed above, that more useful intervention may be achieved.
72. It also appears to us that his Honour’s characterisation of virtually all of the appellants’ previous offending as serious took too ‘broad brush’ an approach, and led him into error.
73. The underlying principle, reference to which may have avoided the errors which we have identified, is that the justification of a custodial disposition is to be found in a combination of the moral culpability of the offender, and the intrinsic seriousness of the offence (having regard to all its circumstances), although there will be offences in relation to which the latter alone may suffice. Even where a custodial term would otherwise be justified, the prospects for rehabilitation of a young offender may make a different disposition appropriate. It appears to us that there was in his Honour’s sentencing remarks a desire to set boundaries for these children and to bolster what had not been successful efforts at rehabilitation, which unfortunately distracted him from that principle. It is perhaps desirable to add that it is very easy to be distracted by such concerns; the transcript of the hearing of this application reveals that all members of this Court, during the course of argument, at one time or another pursued those questions. It is therefore particularly important, when sentencing children to detention, to advert expressly to the basic principle to which we refer.
74. We would grant leave to appeal against sentence, and allow the appeal. In lieu of the sentences imposed by his Honour we would impose the following sentences, to take effect from the date upon which they were announced which take into account the fact that both appellants have spent some time in custody.
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