Children's Court New South Wales Medium Neutral Citation: R v CL [2022] NSWChC 5 Hearing dates: 6 May 2022; 6 June 2022 Date of orders: 9 September 2022 Decision date: 09 September 2022 Jurisdiction: Criminal Before: Judge Ellen Skinner, President of the Children's Court of New South Wales Decision: 1. The Prosecution evidence is capable of satisfying a jury beyond reasonable doubt that the accused committed the charged offences: see [49] 2. The charges may not properly be disposed of in a summary manner: see [95] Catchwords: CHILDREN – criminal proceedings – application of s 31(3) Children (Criminal Proceedings) Act 1987 (NSW) CRIMINAL PROCEDURE – summary disposal – considerations in determining when an indictable offence may not properly be disposed of in a summary manner STATUTORY INTERPRETATION – meaning of 'detained' under s 33A(4) Children (Criminal Proceedings) Act 1987 (NSW) – finding that detained means the period of time detained in a facility under a control order Legislation Cited: Children's Court Act 1987 (NSW) s 7 Children (Criminal Proceedings) Act 1987 (NSW) ss 12, 12(3), 12(4), 18, 18(1A), 31, 31(2), 31(3), 31(3A), 31(5), 31(2B), 31 (3B), 33(2), 33A, 33A(4) Children (Detention Centres) Act 1987 (NSW) ss 3, 24 Crimes Act 1900 (NSW) ss 97(1), 112(2) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 58 Cases Cited: R v WRK (1993) 32 NSWLR 447 JIW v DPP (NSW) [2005] NSWSC 760 The Queen v Hillier (2007) 228 CLR 618 The Queen v Baden-Clay (2016) 258 CLR 308 Texts Cited: Macquarie Dictionary (online at 23 August 2022) Murray Gleeson, 'The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights' (2009) 20 PLR 26 Category: Procedural rulings Parties: Rex (Crown) CL (The Young Person) (Accused) Representation: Solicitor for the Director of Public Prosecutions (Crown) Jalal Ahmad Razi, Trial Advocate, Aboriginal Legal Service (Accused) Emma Hudson-Buhagiar, Solicitor, Aboriginal Legal Service (Accused) File Number(s): 2021/00127964 Publication restriction: Pseudonyms have been used to protect the identity of the accused and other young persons The young person's address has been redacted to protect his identity Judgment 1. CL, the accused, was born July 2003 and is charged with Aggravated break, enter and commit larceny on 15 February 2021 at Breakfast Point and Robbery in Company on 15 February 2021 at Annandale. CL was seventeen and a half at the time of the alleged offending. 2. CL pleaded not guilty to both charges and the matters were listed for hearing at Surry Hills Children's Court on 6 May 2022 and 6 June 2022. 3. The parties consented to the hearing being determined on written statements. The only witness who attended court was the informant, Constable CL Fisher. The Crown indicated that at the conclusion of the Crown case the Court would be asked to consider s 31(3) of the Children (Criminal Proceedings) Act 1987 ('CCPA'). 4. The court must determine whether the evidence is capable of satisfying a jury beyond reasonable doubt that CL has committed one or both of the indictable offences and whether the charge/s may not properly be disposed of in a summary manner. Process under s 31 CCPA 1. s 31 of the CCPA provides a mechanism for summary proceedings to be adjudicated as committal proceedings to facilitate indictable offences being committed for trial or sentence. There are four pathways: 1. s 31(2) enables an accused person to elect for indictable offences to be heard as committal proceedings. 2. s 31(3) enables a court to determine whether indictable offences should progress through a committal process prior to discharge or committal for trial. 3. s 31(3A) enables the prosecution to request that child sexual assault proceedings be heard as committal proceedings. 4. When an accused person enters a plea of guilty to an indictable offence s 31(5) enables the court to determine whether the charge/s should be committed for sentence. 1. The procedure for each decision is different. 1. Under s 31(2) an accused person is able to elect during the prosecution case in a summary hearing where witnesses are available to give evidence and may be examined and cross-examined. 2. Under s 31(3) the court forms a decision at the conclusion of the prosecution case in a summary hearing after witnesses have been examined and cross-examined. 3. Under s 31(3A) in child sexual assault proceedings the Prosecution requests that charges be dealt with according to law which, subject to notice safeguards, channels the proceedings into a committal process where prosecution witnesses do not attend without a specific direction by the court. An accused person has the opportunity to present a defence. The Court must consider both prosecution and defence evidence before determining whether the matter should be dealt with as committal proceedings. 4. Under s 31(5) after an accused person enters a plea of guilty to an indictable offence the court considers all the evidence before the court when determining whether the charge may not properly be disposed of in a summary manner. 1. The distinction between each pathway impacts complainants and witnesses. For child sexual assault offences, the 2018 reforms to s 31(3A) reduced witness attendance such that witnesses are only required to attend court if the court makes a specific direction in committal proceedings or if the matter is committed for trial. Witnesses in other indictable proceedings may be required to attend summary proceedings and later trial proceedings when a court commits a matter for trial. Allocating court time for defended summary hearings that are later committed for trial adds to delay in finalising proceedings. 2. Except where an accused has entered a plea of guilty under s 31(5), the court must determine whether the evidence is capable of satisfying a jury that the accused has committed an indictable offence (ss 31(2B), 31(3) and 31(3B)). If the evidence meets this standard the court must then determine whether 'the charge may not properly be disposed of in a summary manner'. 3. There are two issues in these proceedings: 1. Whether the prosecution evidence is capable of satisfying a jury beyond reasonable doubt that CL has committed an indictable offence; and 2. Whether the charge may not properly be disposed of in a summary manner. 1. The Crown submits the evidence is capable of satisfying a jury beyond reasonable doubt that CL committed the offence of aggravated break, enter and commit larceny and the offence of robbery in company and that the charges may not properly be disposed of in a summary manner. 2. CL submits the evidence is not capable of satisfying a jury beyond reasonable doubt that he committed the offences, and in the event the court disagrees, CL submits that the charges may properly be disposed of in a summary manner. 3. Having reviewed the evidence I have determined that the evidence is capable of satisfying a jury beyond reasonable doubt that CL committed the offences of aggravated break, enter and commit larceny, and robbery in company, as alleged, and that these charges may not properly be disposed of in a summary manner. My reasons are set out below. s 31(3) criteria 1. s 31(3) requires the court to resolve three questions: 1. Is the person charged with an indictable offence? 2. Having regard to all of the evidence before the court, is the court of the opinion that the evidence is capable of satisfying a jury beyond reasonable doubt that the person has committed an indictable offence? 3. May the charge properly be disposed of in a summary manner? s 31(3) criteria – is CL charged with an indictable offence? 1. CL is charged with two offences contrary to the Crimes Act 1900 (NSW). Aggravated Break, Enter and commit Larceny (s 112(2)) and Robbery in Company (s 97(1)) are strictly indictable offences each carrying maximum penalties of twenty years imprisonment. s 31(3)(b)(i) criteria – is the evidence capable of satisfying a jury beyond reasonable doubt that CL has committed at least one of the indictable offences? 1. There is no dispute between the parties that the elements of each offence have been satisfied. The issue for resolution is whether CL was present and participating in the offences either directly or as part of a joint criminal enterprise. The Crown case on identification is circumstantial. The Crown's Evidence Sequence 1 – the aggravated break, enter and commit larceny offence 1. On 15 February 2021 offenders entered residential premises at 139 Peninsula Drive, Breakfast Point while the occupants, three children and their mother and father were asleep. The offenders stole a wallet, a Rolex watch, a Louis Vuitton briefcase, two laptops and the car keys to a white Porsche Cayenne S Coupe (registration 054) ("the white Porsche") and a black Mercedes ACL45AMG (registration CTG 54V) ("the black Mercedes"). Inside the boot of the Mercedes was a white baseball bat with pink and green tinges. 2. CCTV footage from a nearby residence captured seven people walking on Peninsula Drive at 2:11am. The footage reveals that two of the people were wearing distinctive shoes and a third person was wearing pants that had three white horizontal stripes. The footage showed two white cars and a black car driving in close proximity to each other on Peninsula Drive at 2:28am. 3. The white Porsche and black Mercedes were captured together on traffic cameras at 2:52am, travelling westbound on the M4 at Lidcombe; and at 2:56am travelling on the Cumberland Highway at South Wentworthville. Property at Bella Vista 1. At 3:27am, a woman was in her home at 23 Springfield Crescent, Bella Vista when she was woken by a noise. She saw a person near her pergola and observed a Caucasian male, in his mid to late teens, wearing all black clothing and a beanie. He ran down the side of her house and tripped. She then heard a car speed away. 2. On 21 February 2021, police attended Springfield Crescent for an unrelated matter. When Police returned to their car there was a zip lock bag on the bonnet which contained the identification of one of the139 Peninsula Drive, Breakfast Point occupants. The bag was labelled "Found in the front yard 26 Springfield Crescent". Sequence 2 – The Robbery in company offence 1. At 4:01am on 15 February 2021, the black Mercedes was captured on traffic cameras travelling east on the M4 tunnel at Croydon. 2. At 4:09am the white Porsche and the black Mercedes were observed on CCTV driving on Booth Street, Annandale. Both cars stopped outside the Booth Street Bakery located at 87 Booth Street Annandale. 3. Ms H and Mr N were working in the bakery. CCTV footage captured three men entering the shop through the front door. Ms H had her back to the front door when they entered and Mr N was working in a rear room. 4. One man was holding a distinctive white baseball bat with pink and green colouring. He jumped over the front counter and grabbed the cash register which contained an unknown number of coins. He was wearing black gloves that had an outline of a cross on the back of his hand. Markings on his shoes were consistent with the shoes observed on two offenders on the Breakfast Point CCTV. 5. CL spoke to Constable Luke Carana in a recorded interaction on 8 February 2021 and was wearing gloves of similar appearance. 6. The second man who entered the store was carrying a knife. He chased Ms H towards the back of the store. CCTV footage revealed he was wearing a black hoodie with a red hood and a red emblem on the back. There was a mask over his face and he was carrying a satchel. 7. The third man jumped behind the counter then was chased outside by Mr N. The man is observed on CCTV footage to be wearing black track pants with horizontal white stripes, consistent with pants worn by a person seen in the Breakfast Point CCTV footage. 8. Mr N chased the men out of the store through the front door. Mr N observed two men getting into a white Porsche that was parked outside the bakery and observed a white car nearby. Both cars drove off at speed. 9. Mr S was working as a garbage collector on Booth Street Annandale and approached the store when he saw Mr N screaming and waving his hands in the air. Mr N was on the phone to 000 and Mr S spoke to the operator and said he had observed the men driving away in a white Mercedes AMG and a white Porsche with the number plate O54. Annandale to CL's address in Rooty Hill 1. At 4:21am the white Porsche was captured by road monitoring systems traveling westbound in the M4 tunnel at Croydon. The car was traveling at 152km/h. 2. At 4:44am CCTV in Hamrun Circuit, Rooty Hill recorded the Porsche parking before five people exited the Porsche and walked away. 3. At 4:53am five people were captured on CCTV walking on Budapest Street Rooty Hill. One of the men is carrying a baseball bat, another is wearing a jumper and carrying a satchel similar to that observed on the second man described in the bakery incident. At 5:01am five people are observed walking on Brussel Crescent in Rooty Hill. 4. At 5:05am a mobile phone subscribed to [CL's Grandfather's name], from [CL's address], called Premier Cabs where a person introduced himself as [a short version of CL's Grandfather's name] and asked for two taxis to take passengers from [CL'S address] to Willmott. CCTV footage of the path taken by the five people who left the Porsche is consistent with their arrival at [CL's address]. 5. Constable B Fisher provided statements dated 11 May 2021 and 16 July 2021 detailing his knowledge of who resided at [CL's address] on 15 February 2021. Police records revealed CL was bailed to reside at [CL's address]. Other residents included CL's grandfather, GL; CL's sister, IL and brother, EL; and LL and PL. 6. Constable Fisher gave evidence of his knowledge of other residents of [CL's address] and why he had excluded them as suspects for these offences. Constable Fisher stated that he had excluded IL as the CCTV footage indicated that the offenders were men. Constable Fisher was unclear as to why EL was excluded. LL was excluded as he was in custody on 15 February 2021. Police records indicated that PL had an alternate residence and Police did not believe he was living at [CL's address] on 15 February 2021. CL's grandfather GL was excluded due to his age and an assessment that the person who called the taxi had a younger voice. Coincidence evidence – the Greystanes Matter 1. The Crown sought to admit coincidence evidence of CL's involvement in a robbery at Top Bread Bakery, Greystanes on 5 March 2021. 2. CL is charged with robbery in company with wounding (a serious children's indictable offence) and is next listed in the Parramatta District Court on 16 December 2022 pending trial. 3. The following coincidence evidence was admitted: 1. Both robberies were preceded by offenders entering private property and stealing cars; 2. Both events involved the targeting of bakeries; 3. Both occurred in the early hours of the morning, when the bakery was likely to be open, but without customers; 4. Both events involve the offenders arriving and departing the scene in a stolen luxury car; 5. Both events involve three offenders physically entering the bakery, whilst other/s waited in the getaway vehicle/s. 6. In both events, the three offenders had their faces concealed; 7. In both events a cash register was stolen; 8. In both events an offender (not CL) was armed with a knife; 9. In both events another offender (which the Crown alleges to be CL) was armed with a distinctive weapon. In the Greystanes matter this was a lime green pick-axe; and in these proceedings it was a baseball bat with a pink and green pattern; 10. These distinctive weapons were stolen from other locations shortly before the robbery; 11. Both of these weapons were ultimately found by Police in the possession of the young person; 12. Shortly after both robberies the young person places a call to a taxi company requesting pick-up from [CL's address]. 1. The Crown submits that the similarities in the circumstances of the two robberies makes it highly improbable that the offences occurred coincidentally and must have been committed by the same group of offenders, which included CL. The search warrant 1. On 24 March 2021 the police executed a search warrant at [CL's address]. The Police located: 1. A white baseball bat with pink and green colouring, consistent with the bat left in the black Mercedes that was later used in the robbery at Booth Street Bakery. 2. A green handle pick-axe, consistent with the weapon used in the robbery at the Top Bread bakery; 3. A dark coloured hoodie consistent with the clothing worn by the person who carried the line green pick-axe in the Greystanes robbery; 4. A maroon hoodie that was analysed and matched to the DNA of KO, who was discussed as a co-offender in the recorded phone call between CL and DK. 1. There is no evidence regarding the specific location in the house of any of the items found in the search warrant. The telephone intercepts 1. CL was arrested on 7 May 2021 and has since remained in custody. On 10 June 2021 a phone conversation between CL, who was detained at Cobham Youth Justice Centre, and DK was recorded: DK: Old cunts got picked up for the bakery today CL: Who? DK: [KO] CL: [KO]? DK: Yeah… but the other bakery CL: The one when old mate got stabbed or na? DK: Yeah CL: Swear DK: Yeah … DK: Reckon he'll say anything? CL: I dunno bro, that's what I'm thinking, hopefully he doesn't say nothing bro. … CL: Fuck bro, that's a spin out, [KO's] still gonna get stabbed up, just hope he doesn't say nothing. CL's submissions in response to the Crown's evidence 1. CL acknowledges that the evidence connects both sets of offences to [CL's address] but submits that he was not the only resident at the home and therefore the Crown's evidence cannot exclude the rational and reasonable hypothesis that someone else was involved. CL submits that any suspicion relates solely to his associations and his place of residence. 2. CL asked the court to consider that five weeks and three days had passed between the Booth Street Bakery robbery and Police finding the baseball bat at [CL's address]. 3. CL accepts that although the distinctive markings on the shoes draws a link between the break and enter in Breakfast Point and the Booth Street robbery, the evidence does not identify him. CL submitted that the shoes and gloves are generic and not inconsistent with items worn by other young people who have contact with the court. 4. CL submits that the recorded conversation between him and DK reveals his awareness of the offences not an admission of his involvement in the offences. Decision on s 31(3)(b)(i) 1. The Court must assess whether the evidence is capable of satisfying a jury beyond reasonable doubt that CL has committed an aggravated break, enter and commit larceny offence and a robbery in company offence. The only issue in dispute is identification. 2. The identification evidence is circumstantial. In a circumstantial case, the Crown must exclude all reasonable hypotheses consistent with innocence. For an inference to be reasonable, it must rest on something more than mere conjecture. [1] When considering the evidence in a circumstantial case, the jury would be instructed to consider the evidence as a whole and not by a piecemeal approach to each particular circumstance. [2] 3. A review of the prosecution evidence supports a conclusion that the evidence is capable of satisfying a jury, beyond reasonable doubt, that CL has committed the offence of aggravated break, enter and commit larceny and the offence of robbery in company on 15 February 2021. The conclusion derives from a combination of: 1. An inference that the same offenders were involved in the Breakfast Point and Annandale offences, due to the evidence of cars travelling together, the passage of time between offences, the presence of the stolen cars at Annandale, the similarity in clothing between people captured on CCTV at Breakfast Point and Annandale and the use of the baseball bat; 2. An inference that CL was involved due to the similarity in the gloves seen on the Annandale CCTV with gloves worn by CL when speaking to Police one week before the offence and the consistency in appearance between the gloved offender and CL; 3. An inference that CL was involved due admissions made in the recorded telephone conversation from Cobham Youth Justice Centre that he was aware of the offences and was an associate of a person who was implicated in the offences; 4. An inference that CL was involved due to the concern he expressed that KO would snitch; 5. An inference that CL was involved due to the Porsche being stolen from Breakfast Point, used as a getaway vehicle in the Annandale offence then parked near CL's home; 6. An inference that CL was involved due to his bail address being the pickup location for taxis called after the Annandale and Greystanes offences by a phone subscribed to CL's grandfather; 7. An inference that CL was involved due to the recovery of items in the search warrant executed on [CL's address] including the baseball bat with pink and green marking, the pick-axe and two jumpers. These items link the home to the offending and the jumper with KO's DNA links the home to CL's associated offenders. 1. Consideration of the prosecution evidence as a whole supports a conclusion that a jury would be capable of finding that the only reasonable inference is that CL committed both offences. s 31(3)(b)(ii) - May the charge properly be disposed of in a summary manner? 1. There is limited legislative or judicial guidance on the determination of whether a charge 'may not properly be disposed of in a summary manner'. s 31(1) provides that in all offences other than a serious children's indictable offence, the proceedings shall be dealt with summarily. When considering whether a matter should be dealt with as a committal proceeding the court must assess whether the charge may not properly be disposed of in a summary manner in all cases, except when the accused makes an election. 2. The evidence that is considered in making this determination differs, depending on whether: 1. the court formed the view that the matter be dealt with as committal proceedings; 2. the prosecution requested child sexual assault offences be heard pursuant to Division 3AA; or 3. the accused entered a plea of guilty. 1. It is only where an accused has entered a plea of guilty that the court may have regard to any applicable discounts and the contents of a background report. 2. The most significant consideration in whether a charge is capable of being properly disposed of in a summary manner is the likely penalty upon the offence being proven. If the court is convinced that it would be wholly inappropriate to impose a sentence other than a control order, the court needs to consider the length of the order, and whether full time custody will be served. If an individual sentence of two years or an aggregate sentence of three years would be inadequate, the charge would not be capable of being disposed of in a summary manner. 3. Additionally, the Children's Court must not make a new control order if the order would have the effect of requiring a person to be detained for a continuous period of more than three years (taking into account any other control orders relating to the person pursuant so s 33A CCPA). 4. The first step is for the court to conduct a preliminary assessment of a sentencing range, based on the evidence tendered by the Crown to support proof of the offence. As this matter has been defended this assessment is made without consideration of subjective material relevant to sentence. The Court must have regard to s 6 of the CCPA, and ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court may then look to s 18 of the CCPA for guidance on whether a matter should be determined summarily or at law. 5. CL has been subject to consecutive control orders since 9 September 2018. CL was serving a control order from 11 September 2019 to 10 September 2021 for offences including aggravated break and enter. He was released to parole on 10 September 2020 and was on parole when these offences occurred. CL returned to custody on 19 March 2021 and was later sentenced to a control order from 19 March 2021 to 18 April 2021 for being carried in conveyance and obtaining a benefit by deception. He was arrested on 7 May 2021 for these matters and has since been on remand. 6. The seriousness of the subject offending and CL's previous offending as evidenced in his criminal record reveal that the purposes of sentencing could not be met by a community based order such that it would be wholly inappropriate to impose a sentence other than a term of control (s 33(2) CCPA) or imprisonment. s 33A resolution 1. The Crown submits that these proceedings may not properly be disposed of in a summary manner as the Children's Court is unable to impose a further control order due to the operation of s 33A(4) CCPA. If the court imposes a control order it would have the effect of CL serving a term of greater than three years on consecutive control orders. 2. s 33A(4) provides: 33A Cumulative or concurrent orders etc (1) In this section, control order means an order referred to in section 33 (1) (g). (2) Unless a direction is given under this section, the period for which a person is required to be detained under a control order commences when the order takes effect. (3) If the Children's Court so directs, the period for which a person is required to be detained under a control order commences when the period for which the person is required to be detained under another control order or other control orders expires. (4) The Children's Court must not make a new control order, or give a direction under this section, if the order or direction would have the effect of requiring a person to be detained for a continuous period of more than 3 years (taking into account any other control orders relating to the person). (5) Subsections (2) and (3) are subject to section 57 of the Crimes (Sentencing Procedure) Act 1999, as applied by section 33C. (6) This section does not apply to a control order to which section 33AA applies. The Crown's Construction 1. "Detained" is not defined in the CCPA. 2. The Crown submits that 'detained' means a person subject to control such that a person is detained throughout the term of a control order, including the non-parole period and the parole period. 3. The Crown relies on s 3 of the Children (Detention Centres) Act 1987 (NSW) and submits that 'detainee' and 'detention order' are defined in this related legislation. s 3 provides: "detainee" means a person subject to control or a person on remand, but does not include a person who is absent from a detention centre pursuant to an order in force under section 24. "detention order" means – (b) an order in force under section 33(1)(g) of the Children (Criminal Proceedings) Act 1987 whereby the Children's Court… has committed a person to the control of the Minister. 1. To support this construction the Crown relies on s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and submits that the purpose of both that provision and s 33A(4) CCPA is to limit the amount of consecutive detention that can be imposed by a court exercising summary jurisdiction. s 58 provides: 58 Limitation on consecutive sentences imposed by Local Court (1) The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began. CL's Construction 1. CL submits that 'detained' should be construed plainly to mean a period when a person is in custody, consistent with the text, context and purpose of the provision. 2. CL submits that the legislature would have used different terminology, had the intention been to mirror the effect of s 58, contrasting 'requiring a person to be detained for a continuous period of more than three years' with 'subject to a control order for a continuous period of more than three years'. 3. CL submits that the principles of the CCPA are addressed by an interpretation of "detained" plainly meaning a person who is in custody as this interpretation facilitates the resolution of offences in a specialist summary jurisdiction. s 33A(4) - The meaning of "detained" 1. When interpreting statutes, the court is to consider the text of the statute, construe the text in the context of the section and the Act, then look to the purpose of the section and the Act. The Court is to inject the 'full and fair meaning' into the words of legislative text. [3] 2. "Detained" is defined by the Macquarie Dictionary to include: "to keep under restraint or in custody". [4] 1. The text is clear. "Detained" refers to a person who is in custody, under restraint, and does not include when a person is in the community on parole (or, as specified for a "detainee", subject to leave pursuant to s 24 Children (Detention Centres) Act 1987. 2. s 33A can be distinguished from s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The CCPA only specifies a continuous period of three years in detention. It does not state "the Children's Court must not make a new control order, or give a direction under this section, if the order or direction would have the effect of requiring a person to be under a control order for a continuous period of more than 3 years". 3. The CCPA provides a facility for matters to be committed for trial or sentence where an appropriate sentence exceeds the jurisdiction limit of the Children's Court. There is no equivalent provision in the Local Court. 4. In considering the text, context and purpose of the Act, the restriction in s 33A(4) on control orders that require a person to be detained for a continuous period of more than three years does not preclude a court sentencing a person to consecutive control orders of more than three years on the condition that the person has spent time in the community during their orders. This enables children and young persons to have criminal proceedings finalised in a specialist jurisdiction during their adolescence. 5. The Children's Court is able to impose a sentence that commences on any date from 9 May 2021 when CL was taken into custody to 10 September 2021 when his parole expired. s 31(3)(b)(ii) "Not properly disposed of in a summary manner" considerations 1. In this matter the sentencing range falls on either side of the jurisdictional limits of a sentence for a single offence or for an aggregate sentence. "Properly" is defined by the Macquarie Dictionary: 1. in a proper manner. 2. correctly. 3. appropriately. 4. decorously. 5. accurately. 6. justifiably. [5] 1. Where the court assesses that a sentence of two years for a single offence and up to three years as an aggregate offence would not be incorrect, inappropriate, inaccurate or unjustifiable it may assist to consider additional factors that indicate whether a charge may properly be disposed of in a summary manner. 2. In R v WRK (1993) 32 NSWLR 447 at 459 Sully J commented on the relevance of the s 6 principles when having regard to the s 18 discretion. 6 Principles relating to exercise of functions under Act A person or body that has functions under this Act is to exercise those functions having regard to the following principles— (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind, (f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties, (g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions, (h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim. 1. In JIW v DPP (NSW) [2005] NSWSC 760 at [53] Kirby J confirmed that the issues arising under s 31(3)(b)(ii) and s 18 are similar such that a Magistrate may be expected to have regard to the criteria set out in s 18(1A). s 18 applies to a person who is to be sentenced in a court other than the Children's Court. s 18(1A) provides - (1A) In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters— (a) the seriousness of the indictable offence concerned, (b) the nature of the indictable offence concerned, (c) the age and maturity of the person at the time of the offence and at the time of sentencing, (d) the seriousness, nature and number of any prior offences committed by the person, (e) such other matters as the court considers relevant. Application of s 18 to CL's offences s 18(1A)(a) The seriousness of the indictable offence concerned 1. Aggravated break, enter and commit larceny is an offence that carries a maximum penalty of twenty years imprisonment. The circumstance of aggravation is that people were present in the building. An additional circumstance of aggravation of an offence being committed in company may be proven. Up to seven offenders participated in a joint criminal enterprise to arrive at the premises, enter the premises and steal possessions including two luxury vehicles. There was a level of planning and cooperation. 2. Robbery in company is a strictly indictable offence that carries a maximum penalty of twenty years imprisonment. The offence is aggravated due to two offenders being armed. Three offenders entered the bakery but there were other participants in the joint criminal enterprise evidenced by the presence of two getaway vehicles. There was a level of planning and the offence was committed for financial gain. s 18(1A)(b) The nature of the indictable offence concerned 1. The offences involved a group of offenders targeting residential premises to access keys to steal luxury vehicles which were then used in a further serious offence that included the use of weapons. There is no evidence as to whether the cars were recovered. These offences are not uncommon in Sydney and regional areas and involve planning, co-operation and collaboration. s 18(1A)(c) The age and maturity of the person at the time of the offence and at the time of sentencing 1. CL was seventeen and a half at the time of the offence and will be 19 if sentenced. No subjective material has been provided to determine his maturity at the time of the offence. s 18(1A)(d) The seriousness, nature and number of any prior offences committed by the person 1. The first offences on CL's bail report occurred in December 2016 when CL was 14. He has since received penalties for goods in custody, receiving stolen property, aggravated break and enter, drive conveyance, carried in conveyance, steal property from dwelling house, trespass, larceny, enter vehicle, drive unlicensed, police pursuit, break and enter, carry cutting weapon, and drive manner dangerous. Matters have been dismissed under s 33(1)(a), he has received good behaviour bonds, probation orders and control orders. He has received control orders on two different occasions for offences involving theft from premises and for offences involving driving, including police pursuits and, as previously stated, has been serving control orders since September 2018. CL was on conditional liberty when the offences were committed. s 18(1A)(e) Such other matters as the court considers relevant 1. The Children's Court jurisdiction applies child specific legislation in recognition of the development, capacity, communication skills and rights of children and young people. Parliament has determined that indictable offences, including serious indictable offences, can be determined to finality within the Children's Court providing victims, witnesses and offenders with access to a less formal and quicker resolution of proceedings. Most magistrates in the Children's Court are specialist Children's Magistrates in recognition of their knowledge, qualifications, skills and experience in the law and the social or behavioural sciences, and in dealing with children and young people and their families as necessary (s 7 of the Childrens Court Act 1987 (NSW)). 2. Procedurally, in the Children's Court a defended matter will be finalised within months and sentence proceedings could usually occur within two weeks of a plea, where a young person is in custody, or within six weeks when a young person is in the community. Committal for trial or sentence would delay the resolution of proceedings. 3. In Surry Hills, Parramatta, Campbelltown and Broadmeadow Children's Courts the courtroom has been adapted for Children's Court sittings. The court rooms are smaller, the bench is lower, the dock is not enclosed and there is no barrier between the gallery and the bar table. These adjustments to the court rooms support the Children's Court's consistent application of the principles of Part 2 of the CCPA, including: that children have a right to be heard and to participate in the processes that lead to decisions that affect them (s 6); the Court is obliged to take such measures as are reasonably practicable to ensure that the child understands the proceedings (s 12); if asked, the Court is to explain any aspect of procedure of the Children's Court and any decision or ruling made by the Children's Court in relation to the proceedings (s 12(3)(a) and (b)); and the Court shall give the child the fullest opportunity practicable to be heard, and to participate in the proceedings (s 12(4)). 4. In most specialist Children's Courts young offenders will have access to support from the Children's Court Assistance Scheme and other services including Youth Justice workers, Justice Health nurses and Education Court Liaison Officers. In particular locations young offenders are supported by court-based DCJ workers and/or youth workers. Some indigenous offenders with proceedings in Surry Hills or Parramatta Children's Courts may have the opportunity to participate in the Youth Koori Court. Youth Koori Court participants are provided with a range of supports to make positive changes that make it less likely they will receive a custodial sentence and less likely they will reoffend. 5. In order to give effect to the principles of establishing a separate jurisdiction to resolve child offending, in most cases it will be appropriate for a matter to remain in the Children's Court where the Court has scope to impose a sentence within range, and where the seriousness of the offence, the nature of the offence, the age and maturity of the offender, any criminal history and other factors relevant to sentencing reveal that it would not be improper for a matter to be disposed of summarily. 6. The material that is before the court reveals that CL is a young indigenous male who first interacted with the justice system aged 14. He was on supervised parole and residing with family members in Rooty Hill at the time of his arrest. 7. There is no evidence regarding CL's cognitive ability; the environment in which he was raised; his level of education; his mental health; his substance use; his exposure to adverse childhood experiences; or his skills, talents or interests. For an Aboriginal boy who entered the system at such a young age it seems reasonable to assume a level of disadvantage in his background. Bugmy factors may apply. 8. As at 30 June 2022, 51.5% of the detainees in custody in youth detention centres in NSW identify as Aboriginal. [6] It is critical that Aboriginal young people are able to be heard and to participate in proceedings. It is also critical that their proceedings are finalised in an expedient manner to reduce stress and transition them from remand to sentence, enabling them to focus and prepare for a successful return to the community. Additionally, victims and witnesses benefit from an efficient and appropriate resolution of matters that require their attention and attendance. 9. In this case, there is an additional consideration as the 'Greystanes' robbery with wounding charge has been committed for trial. CL may be anxious for all proceedings to resolve but will not know his release date until the conclusion of the Greystanes proceedings. 10. The facts of the Greystanes incident have been admitted as coincidence evidence in these proceedings, and the facts of these incidents may be admitted as coincidence evidence in those proceedings. Civilian witnesses were not required to attend court and give evidence in the Children's Court proceedings as the only issue was identification. Witnesses from both incidents may be required to give evidence in the District Court trial. If this matter is committed for trial there is a reasonable prospect the District Court will admit coincidence evidence such that the trials may be heard concurrently. Such a determination would minimise the delay in finalising proceedings and the impact on witnesses. I note it is only due to the agreement for witness statements to be tendered in these proceedings that a committal for trial would not result in witnesses, other than the informant, attending court twice. 11. The decision of whether proceedings may not properly be disposed of in a summary manner does not allow consideration of which jurisdiction is the most appropriate forum. The focus must solely be on the propriety of a matter being finalised in the Children's Court but the factors that may mitigate towards resolution in the Children's Court, such as the impact on witnesses and the impact of delay, are of less consequence for CL due to the Greystanes proceedings. 12. A combination of factors leads to a conclusion that these offences cannot properly be disposed of in a summary manner. 13. The most significant factor is whether it would be inappropriate for CL to receive a sentence of two years or less for each offence. Given the level of planning, the additional circumstances of aggravation, the value of the property stolen, CL's age and the fact that the offences were committed in breach of parole on a two-year aggregate control order for like offences, the purposes of sentencing would not be met by the imposition of an equal term. Although courts when sentencing young offenders ought to give greater weight to rehabilitation than to deterrence and retribution a sentence must reflect the objective seriousness of the crime. Given that CL has served two previous control orders for offences involving burglary and stolen cars, these sentences must operate to deter him and others from future serious offending. 14. CL will be given the opportunity to call evidence in his defence, in accordance with s 31B CCPA. The Court will then resolve whether there is a reasonable prospect that a jury, properly instructed, would convict CL of each indictable offence. If so, CL will be committed to stand trial on these offences. 15. If these matters are proven, both incidents can be finalised by the same judicial officer with proper regard to subjective factors and totality. The District Court retains the power to sentence CL pursuant to the CCPA or to remit the matter to the Children's Court for sentence. ORDERS 1. The Children's Court is of the opinion that, having regard to all the evidence before the Children's Court, the evidence is capable of satisfying a jury beyond reasonable doubt that CL has committed the offences of aggravated break, enter and commit larceny and robbery in company, and the charges may not properly be disposed of in a summary manner. 2. The matters are to be dealt with as committal proceedings in accordance with Part 3 Division 3A of the Children (Criminal Proceedings) Act 1987 (NSW). ********* Endnotes 1. The Queen v Baden-Clay (2016) 258 CLR 308 at [46] to [48]. 2. The Queen v Hillier (2007) 228 CLR 618 at [46]. 3. Murray Gleeson, 'The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights' (2009) 20 PLR 26, 26. 4. Macquarie Dictionary (online at 23 August 2022) 'Detained'. 5. Macquarie Dictionary (online at 23 August 2022) 'Properly'. 6. New South Wales Bureau of Crime and Statistic Research, Custody Statistics (Web page, 6 June 2022) < https://www.bocsar.nsw.gov.au/Pages/bocsar_custody_stats/bocsar_custody_stats.aspx> Amendments 24 November 2022 - 24 November 2022 - Minor correction made to judicial officer's title. 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: 24 November 2022