District Court New South Wales Medium Neutral Citation: R v Matthew Cole (a pseudonym) (No 2) [2022] NSWDC 239 Hearing dates: 29 November 2021, 1 December 2021, 8 December 2021; 10 February 2022 Date of orders: 25 March 2022 Decision date: 25 March 2022 Jurisdiction: Criminal Before: Sutherland SC DCJ Decision: At [10] Catchwords: CRIME – Sentence – s 19 Children (Criminal Proceedings) Act 1987 – Special circumstances – Detention in a juvenile facility Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Cases Cited: R v AN [2014] NSWSC 1879 R v AN (No.2) [2015] NSWSC 308 Category: Sentence Parties: Crown Matthew Cole (a pseudonym) Representation: Counsel: Crown: Mr K Prince Defence: Mr A Radojev Solicitors: Crown: Solicitor for Public Prosecutions Defence: Mr M Stidwill File Number(s): 2020/224974; 2021/040610 Publication restriction: Prohibition on publication of the offender's name or any matters that might identify him. sentence 1. On 10 February 2022, I delivered extensive remarks on sentence and, in due course, passed a sentence of eight years imprisonment with a four year non-parole period on this young person. I noted, of course, the restrictions contained in s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) and the circumstance that the mandatory place of detention for a person over the age 18 is in an adult correctional facility unless the "special circumstances" set out in s 19 are made out. 2. I followed the course taken in R v AN [2014] NSWSC 1879 by Hall J who was confronted in those proceedings with a young person in respect of whom, at the time of passing sentence, there was a paucity of evidence justifying a determination under s 19 that he be detained for the period of incarceration in a juvenile detention institution. His Honour stood the proceedings over part heard despite having passed sentence for the purpose of the obtaining of a report to deal with that issue. 3. I took the same course in these proceedings and accordingly adjourned the proceedings before myself and directed that Juvenile Justice obtain a report specifically focused on the question of the matters raised in s 19(4)(b) and (c) in particular and gave leave to the representatives of the offender to file any additional material that they saw fit. Material was forwarded through from the instructing solicitor of Mr Radojev on behalf of the young offender which was sourced from various of the case workers involved directly with him. 4. This morning, the actual confidential report being described as an addendum to the sentencing report, prepared under the hands of the case worker directly involved with the offender and also the assistant manager of Juvenile Justice at the relevant office, arrived shortly before Court was due to commence this morning. 5. It sets out in terms, despite some syntactical and grammatical errors contained in it, in essence, what is said to be three particular matters identified as making Matthew Cole eligible or suitable for a s 19 order, in the opinion of the authors of the report. 6. I do not propose to read great portions of the report. It will be an exhibit in the proceedings as will the material that was forwarded by the instructing solicitor and will be included in the Court file. 7. The relevant summary on p 4 reads as follows: "This service identifies three primary areas that would indicate special circumstances exist for (Matthew) that would deem him suitable for a section 19 order. (Matthew) will not be able to engage in his year 12 or commence tertiary studies due to the limited accessibility to online resources in an adult setting. Specific youth offence focused interventions including a further psychological assessment to identify specific pro-criminal attitudes and cognitive distortions and completion of the CHART program will not occur in an adult setting. (Matthew)'s young age, having recently turned 18, makes him susceptible to older and more sophisticated inmates within an adult setting." 1. The circumstance surrounding this young man is such that I am satisfied that there are courses available to him and focus on his education available to him in the youth justice facility which would, for the reasons set out in that report, not be available to him in an adult setting. The overall objective of rehabilitation will manifestly in my view, in relation to this particular young individual, be substantially advanced by him pursuing the remarkable steps towards personal rehabilitation that he has already taken. He is described as a model inmate and a leader amongst others in a setting where often that has a pejorative description rather than an exemplary one or a complimentary one should I say. 2. In all of the circumstances, I adopt many of the observations made by Hall J when he took the same course in R v AN (No.2) [2015] NSWSC 308. 3. I find special circumstances and I note, of course, pursuant to s 19(4)(a) that a finding may not be made simply because of a person's youth. The need for focused education towards his rehabilitation, his attainment of the HSC and his pursuit of tertiary qualifications leading hopefully both for his interests and more specifically the interests of the community are such that in my view, special circumstances do exist and accordingly, I make an order pursuant to s 19(1) and s 19(3) of the Children (Criminal Proceedings) Act, directing that he serve his non-parole period as a juvenile offender up until the day either that he attains 21 years of age or that he becomes eligible for release. 4. RICHARDS: Your Honour, I just raise this just as an abundance of caution noting- 5. HIS HONOUR: Certainly. 6. RICHARDS: Given he has already turned 18, is the order - and because he's currently serving a sentence, the order under s 19(1A). 7. HIS HONOUR: Just bear with me. 8. RICHARDS: I can hand up the legislation. 9. HIS HONOUR: Thank you. (1A) deals with a person of or above the age of 18 who is serving the whole or any part of a term of imprisonment in a correctional centre. 10. RICHARDS: And the correctional centre definition includes juvenile detention. 11. HIS HONOUR: Does it? All right. Well, I should make it abundantly clear that I am satisfied that the special circumstances to which I have made reference that arise pursuant to subs (3), I am also satisfied that those special circumstances justify detention of the person as a juvenile offender pursuant to subs (1A). 12. RICHARDS: Thank you, your Honour. 13. RADOJEV: Thank you, your Honour. Obliged to my friend. 14. HIS HONOUR: All right. (Matthew), I hope that I neither see or hear anything of you unless it's-- 15. RADOJEV: In glowing terms. 16. HIS HONOUR: --in glowing terms as Mr Radojev says. Good luck with your studies. 17. OFFENDER: Yes. Thank you, your Honour. 18. HIS HONOUR: I will adjourn. ********** 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: 29 June 2022