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." THE CROWN SUBMISSIONS 1. Ms Hanshaw, solicitor advocate, who appears on behalf of the Crown, submitted that sequence 2 was dealt with according to law and therefore s 14(2) has no application. She submits the only power not to record a conviction is the imposition of a conditional release order without conviction. She relies upon R v JP [2014] NSWSC 698 where a 15 year old child was found not guilty of murder but guilty of manslaughter. At [163] Hall J said, "JP, you are convicted of the offence of manslaughter..." 1. Neither party argued s 14. I do not accept the submission that what his Honour did "was in accordance with law given the application of s 14(2) of the Act". 2. She also relies upon the sentence remarks of Lerve DCJ in R v RI [2019] NSWDC 129 where his Honour was dealing with an offender who committed two counts of sexual penetration of a child above 14 years and below 16 years when he was two days short of his eighteenth birthday. She referred me specifically to [69] where his Honour formed the view if the matter is dealt with summarily a court has discretion if the juvenile is over 16 but under 18. I agree with his Honour's analysis that a court has discretion if the young person is over 16 but under 18. With the greatest of respect to his Honour I do not agree with his analysis that that discretion only comes into being if the matter is dealt with summarily. The statute does not read that way. 3. The Crown referred me to R v Dungay [2020] NSWCCA 209. Mr Dungay was 25 at the time of sentence. Ground 1 of the appeal was that the Court erred in admitting evidence and having regard to the applicant's Children's Court criminal history. At [90] N Adams J said, "The practical effect of s 14 is that if the Court has previously found that a child aged less than 16 years dealt with in the Children's Court to be guilty of an offence no conviction is entered. If the child is over the age of 16 years the Children's Court has a discretion as to whether to enter a conviction". 1. What her Honour said about the discretion of the Children's Court is referable specifically to the Children's Court. Her Honour was not analysing the Act when dealing with a young person according to law. OFFENDER'S SUBMISSIONS 1. Mr King submits that the correct interpretation of s 14(2) is that a Court dealing with a young person according to law between 16 and 18 has a discretion as to whether to enter a conviction. He referred me to R v DN (supra) and R v Jasper [2014] NSWDC 116. In that case Cogswell SC DCJ was dealing with a 15 year old at the time of the offence. The offender seriously stabbed another boy at school. He was dealt with for wound with intent to cause grievous bodily harm. He was dealt with according to law. 2. On the Crown submission in that case s 14(2) would not arise as the Crown submits in this case. His Honour was referred to s 14. The Crown submitted that the discretion should not be exercised because it was a serious offence. His Honour exercised discretion and did not convict the offender. The offender was sentenced to six years and nine months with a non-parole period of two years and five months without a conviction. 3. Mr King submitted that the legislation was tailored to the age of offending, not at the time of being dealt with. He submits that she was below the age of 16 at the time of offending, therefore it was mandatory not to convict. I do not accept the tenet that the legislation revolves around age at the time of offending. Parliament, if it wanted such an interpretation, would have said so. The legislation is to be interpreted as at the age at the time the Court deals with the offender. DETERMINATION 1. Section 14(1)(a) deals with a child under the age of 16. It is not relevant here. However, without limiting any other power of a court a court shall not (mandatory words) proceed to conviction of a child if a child is under the age of 16 years. Section 14(1)(b) provides a discretion (the word used is "may") where an offence is disposed of summarily refuse to proceed to conviction when the child is above the age of 16 years. 2. This offence was not dealt with summarily. However, that is not the end of the matter. Section 14(2) has work to do. Subsection (2) does not limit a court to proceed to or record a conviction in respect of a child charged with an indictable offence that is not disposed of summarily. The young person was charged with an indictable offence. It was not disposed of summarily but, rather, according to law. Section 14(2) has work to do. It provides the Court discretion not to convict if, (a) it is an indictable offence, and (b) the indictable offence is not disposed of summarily. 1. The word in s 14(1) is "an offence". An offence must include an offence dealt with according to law. Section 14(1) is then read in conjunction with s 14(2); that is, it must be a child (which AR is) charged with an indictable offence (that is the case here) that is not disposed of summarily (that is the case here). Thus s 14(2) enlivens discretion not to record a conviction. 2. Mr King submits that my failure to consider the exercise of discretion was an error or law. The Crown submits that the order imposed was not an order contrary to law and the failure to exercise discretion is not an error of law and s 43 of the Crimes (Sentencing Procedure) Act would not arise. My failure to consider discretion pursuant to s 14(2) of the Act is in my view an error of law, and pursuant to s 43 I reopen the proceedings. No conviction is to be recorded. I do so because of the age of the offender, her prospects of rehabilitation, and her desire to work in the beauty industry, which would be enhanced if no conviction was recorded. I accept that the offence was a serious offence and that is reflected in the imposition of a community correction order for the length and term of that order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2021