R v AK [2022] NSWChC 9

Children's Court New South Wales

Medium Neutral Citation: R v AK [2022] NSWChC 9 Hearing dates: 11 November 2022 Date of orders: 11 November 2022 Decision date: 11 November 2022 Jurisdiction: Criminal Before: Magistrate McLaughlin Decision: The charges may properly be disposed of in a summary manner. Catchwords: CHILDREN – criminal proceedings – application of s 31(3) Children (Criminal Proceedings) Act 1987 CRIMINAL PROCEDURE – summary disposal – considerations in determining when an indictable offence may not properly be disposed of in a summary manner JURISDICTIONAL LIMIT OF CHILDREN'S COURT – statutory interpretation "detained for a continuous period" Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Children's (Criminal Proceedings) Act 1987 (NSW) Children (Detention Centres) Act 1987 (NSW) Children (Criminal Proceedings) Amendment Act 1989 No. 75 (NSW) Cases Cited: R v WRK (1993) 32 NSWLR 447 JIW v The Director of Public Prosecution [2005] NSWSC 760 Bugmy v The Queen (2013) 249 CLR 571 Texts Cited: The Macquarie Dictionary & Thesaurus Online Category: Principal judgment Parties: AK (the young person) Rex (the Crown) Representation: Mr Harrison (young person) Rex (the Crown) File Number(s): 2022/00268608 Publication restriction: A pseudonym has been used to protect the identity of the accused.

JUDGMENT

Background 1. AK the offender was born 26 January 2006 and is charged with Aggravated Break, Enter and Commit Larceny (sequence 2) and Taking and Driving a Conveyance being a white Toyota Camry (Seq 3) on 6 June 2022 at Albury. 2. He is further charged with unlawful entry onto enclosed lands. 3. AK was 16 years and 4 months at the time of the offending. 4. AK entered a plea of guilty to all three offences on 4 July 2022 and an order was made for a full background report. 5. On 15 August the solicitor for the Office of the Director of Public Prosecution asked the court in relation to the two indictable offences, sequences 2 and 3 to consider s 31(5) of the Children's (Criminal Proceedings) Act 1987. It is the Crown's submission that the Court would find that the Children's Court having regard to all the evidence before it (including the background report), may not properly be dispose of in a summary manner. 6. He submitted the court would make this finding having regard to the following: 1. The offences were committed whilst AK was subject of a three-year control order, that control order expires on 27 July 2023. 2. That he is currently serving a further control order as well as the revocation of his parole, with the non-parole period to expire on 6 January 2023. 3. That Section 33A of the Children's (Criminal Proceedings) Act 1987 limits the power of the Children's Court which "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)" 4. That the effect of this provision as it applies to AK would have the effect of limiting the Court to imposing a further control order on AK to 27 July 2023. 5. That having regard to the seriousness of the offences, his history, the background report, matters in mitigation as well as section 18(1A) factors the court would find that the charges could not be properly dealt with given the restriction of a sentence that must expire by 27 July 2023. 1. Mr Harrison who appears on behalf of AK provided written submission to the court during the initial hearing and conceded that the only appropriate way the matters could be disposed of was by the further imposition of a control order and agreed that the Children's Court could not impose a sentence that surpassed 27 July 2023. 2. Mr Harrison further submitted that an aggregate sentence for the offences would not exceed the jurisdictional limit of an aggregate sentence of 3 years and that the court may find an appropriate sentence within the limit of the restrictions imposed by section 33A. 3. The matters were adjourned to 16 August for decision. 4. On this date the Court raised with the parties the specific wording of section 33A: "The Children's Court must not make another control order, or give 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)" 1. This was then compared to the wording of the corresponding section relevant to the limit of the Local Court, section 58 Crimes (Sentencing Procedure) Act 1999: "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 began." 1. The Court indicated to the parties that on its interpretation of section 33A(4) the Children's Court was not restricted to the expiration of AK's parole on 27 July 2023, as AK had not been detained for a continuous period of three years but to a control order of three years. 2. A timetable was set for the parties to file written submissions on this issue. 3. It is uncontroversial that AK was sentenced to a control order commencing 28 July 2020 expiring on 27 July 2023. There is no dispute that he is subject to that control order.