R v AR [2021] NSWDC 95

District Court New South Wales

Medium Neutral Citation: R v AR [2021] NSWDC 95 Hearing dates: 12 March 2021 Date of orders: 24 March 2021 Decision date: 24 March 2021 Jurisdiction: Criminal Before: Grant DCJ Decision: Pursuant to s 43 of the Crimes (Sentencing and Procedure) Act 1999, I reopen the proceedings. No conviction is to be recorded. Catchwords: Criminal law sentencing – young offender – to convict or not to convict – error of law Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v DN [2019] NSWDC 536 R v JP [2014] NSWSC 698 R v RI [2019] NSWDC 129 R v Dungay [2020] NSWCCA 209 R v Jasper [2014] NSWDC 116 Category: Sentence Parties: Regina (Crown) AR (Offender) Representation: Counsel: Mr King (Offender)

Solicitors: Ms Hanshaw (Crown Ms Dawson (Crown)

Mr Rosalky (Offender) File Number(s): 2020/00087811 Publication restriction: Statutory non-publication order in relation to name of the offender.

Judgment

INTRODUCTION 1. HIS HONOUR: On 18 February 2021 I sentenced AR in relation to criminal conduct that occurred on 19 March 2020. At the time of offending she was 15 years of age, born on 2 January 2005. At the time of sentence she was 16. Sequence 2 was an offence of take/detain in company with intent to get advantage contrary to s 86(3) of the Crimes Act. The charge is a serious children's indictable offence. Pursuant to s 17 of the Children (Criminal Proceedings) Act 1987 the young person was dealt with according to law and in accordance with the Crimes (Sentencing Procedure) Act. She was sentenced to a community correction order for 18 months with two standard conditions and supervision by a Juvenile Justice Officer for the period of the order. She was also required to complete a Changing Habits and Reaching Targets (CHART) course. 2. I also dealt with her for sequence 5, assault occasioning actual bodily harm in company, and sequence 6 on a s 166 certificate of common assault. These offences were not serious children's indictable offences. I exercised my discretion and dealt with the young person pursuant to div 4 of pt 3 of the Children (Criminal Proceedings) Act 1987. 3. Subsequent to the sentence of AR I had reason to read what I had said in R v DN [2019] NSWDC 536. In that case I sentenced a 14 year old offender in relation to six counts of sexual intercourse with a person under ten, contrary to s 66A(1) of the Crimes Act. The maximum penalty was life imprisonment. He was dealt with according to law. I placed the young person on a community correction order with conditions for three years. The Crown brought my attention to s 14 of the Children (Criminal Proceedings) Act 1987 and I did not convict the young person in accordance with that provision. At the time I sentenced AR neither party brought to my attention s 14. 4. I had my associate contact the parties and the matter was relisted on 12 March 2021 for submissions about s 14 and whether my failure to consider it constituted an error of law requiring the reopening proceedings pursuant to s 43 of the Crimes (Sentencing Procedure) Act. Section 14 of the Children (Criminal Proceedings) Act 1987 provides: "14. Recording of conviction (1) Without limiting any other power of court to deal with a child who has pleaded to, or has been found guilty of, an offence, a court- (a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who was under the age of 16 years, and (b)may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years. (2) Subsection (1) does not limit any power of a court to proceed to, or record such a finding, as a conviction in respect of a child who is charged with an indictable offence that is not disposed of summarily."