Children's Court New South Wales Medium Neutral Citation: Secretary of the Department of Communities and Justice v Rod Rivers [2020] NSWChC 9 Hearing dates: 25 November 2020 Decision date: 25 November 2020 Jurisdiction: Criminal Before: Judge Johnstone Decision: The original order for parole, which has expired, is reinstated Catchwords: YOUTH PAROLE – Children's Court Parole jurisdiction – whether revocation of parole should be confirmed - rescission of revocation of parole – reinstatement of the original order for parole - proper method of calculating the extension of a detention order where there has been a breach of parole and the young person has been at large ("Street Time") Legislation Cited: Children (Detention Centres) Act 1987 Children (Criminal Proceedings) Act 1987 Cases Cited: Secretary of the Department of Communities and Justice v Julian Minster [2020] NSWChC 10 Polizio v The New South Wales Parole Authority (2013) NSWSC 1829 Category: Principal judgment Parties: The Secretary of the Department of Communities and Justice The child Representation: Counsel: Ms Wright for the Secretary of the Department of Communities and Justice Ms Manuell, Deputy Senior Public Defender for the child Solicitors: Mr Dimech, Senior Solicitor, Children's Legal Service for the child Ms Najjar of the Crown Solicitor's Office for the Secretary of the Department of Communities and Justice File Number(s): 2020/00000126 Publication restriction: Pseudonyms have been used in order to anonymise the child. Judgment 1. These are my reasons for decision in the matter of Rivers; being Rod Rivers, now aged 16. 2. He came before the Children's Court pursuant to charges in respect of which there were various sequences numbered 1, 2, 3 and 5. Sequences 1, 3 and 5 were withdrawn and a guilty plea entered on 1 May 2020 to the second sequence being reckless wounding in company for which he was sentenced to a period of detention for 12 months, with a non-parole period and a period of parole to commence on 22 May 2020. 3. He was duly released to parole on 22 May 2020 and was at large under conditions of parole, but unfortunately then committed further offences. He was arrested on 20 September 2020, then on 22 September 2020 the Children's Court made an Order under s 66 of the Children (Detention Centres) Act 1987 revoking his parole, to take effect from 20 September 2020. He was given a notice to attend a hearing on 7 October 2020. 4. On 8 October 2020 he was charged with a breach of bail and taken into custody for the fresh offences. 5. He has remained in custody from that date. 6. In a judgment I gave this morning in the matter of the Secretary of the Department of Communities and Justice v Julian Minster [2020] NSWChC 10, I held that the Children's Court has an implied power in respect of the Children (Detention Centres) Act 1987 to rescind revocations of parole. 7. In the current matter it is submitted by the Secretary that I should confirm the revocation of parole. Alternatively, the Secretary contends that even if I revoke the original order for revocation, I should in fact make a fresh revocation today. 8. Either way I would be required to consider s 68(3) of the Children (Detention Centres) Act 1987, namely whether or not the original period or the original date on which the parole period expired should be extended by the number of days the person was at large after the order took effect, commonly called "Street Time" in this Court. 9. Also associated both with this matter and the matter of Minster was a series of submissions by legal representatives for the two young persons - instructed by the Legal Aid and the Aboriginal Legal Service - that there were defects in the process and the forms used by the Children's Court in relation to its parole jurisdiction including, amongst other things, a failure to give adequate reasons and a failure to reproduce or publish the relevant forms on the Court's website. I make no decision in relation to those matters today, for reasons which will emerge. I do agree that there are issues that should be addressed in relation to the processes and forms utilised by the Children's Court in its parole jurisdiction as to which I propose as the President to address as quickly as possible. 10. I will form, or have the Court's Executive Officer form a Crime Working Party of the Children's Court so that those matters can be addressed in a consultative way to determine whether the forms should be amended, the processes should be revised, and whether any legislative amendments might be necessary. 11. Most importantly, it seems to me, that review process needs to have regard to what has been the practice of the Court to make an ex parte decision - well not even an ex parte decision, but a decision by the relevant judicial officer made in chambers, based on written material, without any opportunity on behalf of either party to make submissions to the Court as to whether or not parole should be revoked. 12. It seems to me careful consideration should be given to a better process which reflects the principles set out in the relevant legislation that is applied by the Children's Court, the primary consideration being detention as a last resort and rehabilitation as the prime focus as opposed to mere punishment. 13. Turning though to this case, being mindful that the order for revocation in this matter was made in the way I described, namely a decision in chambers without submissions from the parties without consideration of all of the factual matrix which led to the revocation or purported revocation, and, having in a sense reviewed that decision today against the full factual background and with the benefit of submissions, the issue that arises in this matter that distinguishes it from that of Minster is whether the young person's offending was so serious that it gives rise to the issues contemplated in s 66 of the Children (Detention Centres) Act 1987: 66 Circumstances for revocation in addition to non-compliance 1. The Children's Court may make an order revoking a parole order at any time after the release of a juvenile offender— 1. if it is satisfied that the offender poses a serious and immediate risk to the safety of the community and that the risk cannot be sufficiently mitigated by directions from a juvenile justice officer or by changing the conditions of parole, or 2. if it is satisfied that there is a serious and immediate risk that the offender will leave New South Wales in contravention of the conditions of the parole order and that the risk cannot be sufficiently mitigated by directions from a juvenile justice officer or by changing the conditions of parole, or 3. in the case of an offender who has been granted parole under section 47 on the grounds that the offender is dying or because of exceptional extenuating circumstances, if it is satisfied that those grounds or circumstances no longer exist, or 4. if the offender fails to appear before the Children's Court when required to do so under this Part, or 5. if the offender has applied for the order to be revoked 1. The Children's Court may make a parole revocation order on its own initiative or on the recommendation of the Secretary or a juvenile justice officer. Note — Division 5 sets out additional circumstances relating to the safety of the community in which the parole of individuals may be revoked if there are terrorism concerns. 1. It seems to me that those considerations are important and require to be addressed either at the time that the matter first comes before the Court, or when the matter comes before the Court for further consideration, such as it is today. In my view serious consideration should be given to a process whereby parole in this jurisdiction is not revoked without an appropriate hearing in which the parties have an opportunity to fully consider the question of revocation parole and a full opportunity to address the Court on the issue. 2. It might be thought that this changes the onus from one of requiring a young person to justify why a fresh grant of parole should be granted as opposed to an onus on the Secretary to establish why parole should be revoked, having regard to the principles in s 66. 3. I do not think that matters particularly but in any event the exercise I need to undertake today is to consider whether the original revocation of parole should be confirmed. 4. The Secretary submits through counsel, Ms Wright, that the circumstances of the fresh offending is so serious that the Court should confirm the revocation of parole and that it would not be in the interests of justice to rescind the revocation. 5. In my view the answer to the question is that the revocation of parole should not be confirmed; having regard firstly to the fact that the full circumstances of the affray, in particular, were unknown at the time that the revocation order was made; and secondly that the other new offences which were said to have been committed on 20 September 2020 involve a goods in custody charge and a possess house breaking implements charge, for which the young person received a s 33(1)(b) bond and a nine month probation order under the Children (Criminal Proceedings) Act 1987. Those are not matters which would normally attract revocation of parole in my view and as regards the affray, as I said, the full circumstances were not known to the Court at that time. Interestingly, the new affray committed on 19 June 2020 became the subject of a sentence on 18 November 2020 but for whatever reason, no one seems to have the full details of those facts even today. 6. For those reasons, it seems to me that I should, pursuant to the implied power that I have referred to of the Children's Court, rescind the original revocation order and I so order. 7. The next decision I have to make is whether or not to make a fresh revocation as at today's date, taking into account the seriousness of the offending. 8. There is no utility in my view, in making a fresh revocation as of today's date because as I said in discussion, the young person has been further sentenced for his affray and will be under supervision by way of a control order for another two months and under conditions of parole for a further six months after that, until 7 June 2021. 9. The result is that I am reinstating the original order for parole which has expired. So that is the end of these proceedings. 10. I might just add that so far as the interests of justice are concerned - I am trying to think of the decision that I made; it might have been a care case actually - where the Children's Court tries to avoid unnecessary court proceedings and processes which cost money. So I act upon a principle of minimising litigation or court processes where they are not required and that is part of the reason why I think it is totally unnecessary to have this young person subject to an ongoing parole situation, even if there were to be street time added to his original sentence or his original parole period, when he will be subject to parole supervision until that May date in any event. 11. I do not propose to give detailed reasons in relation to the next issue and, for the reasons that I have given, my remarks will be by way of obiter dicta as opposed to any binding decision. Nevertheless, it seems to me that even if they are obiter dicta having the basis that they fall from the President of the Children's Court, should be binding on all future parole proceedings in this court. 12. As part of the submissions in both this matter and the matter of Minster to which I have referred, and indeed the original reason for the Rivers matter being listed today for decision, was the need to decide the proper way for determining the calculation of the period referred to in s 68(3) of the Children (Detention Centres) Act 1987, which provides: "If the juvenile (young) offender is not taken into custody until after the day on which the order revoking the parole order takes effect, the term of the offender's detention order is by this subsection extended by the number of days the person was at large after the order took effect". 1. This is commonly referred to in the parole jurisdiction of the Children's Court as "street time". 2. It might be noted by way of background that historically street time in the Children's Court and parole jurisdiction has been calculated in a particular way but having regard to the wording of the legislation and in particular the decision of the Supreme Court of New South Wales in Polizio v The New South Wales Parole Authority (2013) NSWSC 1829, a decision of Hoeben CJ at Common Law made on 13 December 2013, that historical approach has now been questioned. 3. There are extensive written submissions by both parties on the application of that decision to the parole jurisdiction in the Children's Court. Polizio was a decision that was made in relation to the parole regime for adults. Without more, it seems to me that that is a decision by which this Court is bound; it being a decision of a superior court and it being a decision in relation to wording of an Act which governs the parole regime for adults, as opposed to the Children (Detention Centres) Act 1987 which governs the parole jurisdiction for children exercised by the Children's Court. Without more, it seems to me that the decision would apply, and I do not need to detail how it applies as that is clearly set out in the decision and in the submissions. 4. I have, however, received a detailed submissions on behalf of the young person dated 17 November 2020 and 24 November 2020, both sets of submissions filed by Mr Dimech, Senior Solicitor, Children's Legal Service; prepared by Counsel, Ms Janet Manuell, Deputy Senior Public Defender being a series of submissions as to why Polizio should be distinguished, so far as the Children's Court parole jurisdiction is concerned having regard to the nature of the Children's Court jurisdiction and a number of other considerations which are set out eloquently and in detail in the submissions. 5. I do not propose to traverse those arguments today except to say that notwithstanding those submissions and notwithstanding the differences in the two jurisdictions, in my view this Court is clearly bound by the Supreme Court decision in regard to the wording of the legislation. And, having regard to the fact that there are two regimes, it seems to me it would be inappropriate for the regimes to differ where the wording of the relevant sections are identical, and where the legislature has not specifically provided for a different test or a different application of the test in the youth jurisdiction. 6. For those reasons I determine that the application of the Children (Detention Centres) Act 1987 should be in accordance with the reasoning in Polizio, namely the calculation of street time under s 68(3) is to be made having reference to time at large and time in custody not referable to the original offences for which the parole order in question was made. 7. I am not going to rule further today, because what I am trying to say to everybody is, if there is an injustice being heaped upon a young person by reason of the application of Polizio which results in them incurring street time - even where they are still under supervision and complying - they shouldn't be required to have that street time added to their parole period. Therefore, the better course of action is to exercise the implied right of rescission of the revocation and then do what I did today, or where appropriate, vary the revocation date, for example, to the date of the Court hearing. ********** 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: 23 July 2021