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. The parties' submissions The Crown 1. As a result of section 41 of the Children (Detention Centres) Act 1987 a Children's Court has jurisdiction to determine matters relating to parole, and conditions of parole, for juvenile offenders. 2. Section 39 of the Children (Detention Centres) Act 1987 defines "juvenile offenders" as meaning: 1. a person subject to control, 2. a person who is serving a sentence of imprisonment and who was under the age of 18 years when the person committed the offence. 1. The Crown further submits that section 39 of the Children (Detention Centres) Act 1987 defines a "detention order" to include a sentence of imprisonment, and also a "juvenile offender" as a person subject to control. 2. That section 33A (1) provides that in the section "control order" means an order referred to in section 33(1)(g) of the Children (Criminal Proceedings) Act 1987 and that sections 33A(2) and 33A(3) refer to the period which "a person is required to be detained under a control order", noting the specific reference to "detained under a control order." 3. The Crown submits that the only way a young person can be detained is by imposition of a control order. The young person 1. The solicitor for the young person, Mr Harrison, submits that there is no authority on the interpretation of section 33A(4) and it is instead a matter of statutory interpretation. That this section is not akin to section 58 of the Crimes (Sentencing Procedure) Act because it refers to total sentences as defined in section 58(4) and that section 33A requires a specific consideration of a period a young person is detained for a continuous period. 2. That the wording 'continuous period of detention" is critical to the effect of the section. 3. The custodial history of AK being that he has been in continuous detention since 9 June 2022 and that this period of 6 months and 29 days need be considered as part of the three-year period of detention. Mr Harrison submits it is this continuous detention that the parliament contemplated in section 33A(4) with the words "taking into account any other control orders relating to the person". 4. Mr Harrison submits that the correct interpretation of "detained for a continuous period" means that a young person serving terms of control should not serve 3 years detained across all court-imposed sentences and the Children's Court in this matter has the jurisdictional limit not to impose a sentence that would exceed that. That following this interpretation the Children's Court has a jurisdictional limit in this matter of a control order where AK is released on or before 5 January 2024. 5. Mr Harrison submits that having regard to this interpretation and submissions on sentence in relation to the objective and subjective matters in this case, as well as section 6 and 18 of the Children's (Criminal Proceedings) Act 1987 the court should not exercise its discretion pursuant to section 31(5) as the charges may properly be disposed of in the Children's Court. The relevant legislation s 31 Hearing of charges in the Children's Court (1) If a person is charged before the Children's Court with an offence (whether indictable or otherwise) other than a serious children's indictable offence, the proceedings for the offence shall be dealt with summarily. (2) Notwithstanding subsection (1)— (a) if a person is charged before the Children's Court with an indictable offence (other than an offence that is punishable summarily without the consent of the accused), and (b) if the person informs the Children's Court (at any time during, or at the close of, the case for the prosecution) that the person wishes to take his or her trial according to law, the proceedings for the offence must not be dealt with summarily but are to be dealt with as committal proceedings in accordance with Division 3A. (2A) If a person makes a request under subsection (2) before the close of the case for the prosecution, the proceedings are to continue as summary proceedings for the purpose only of completing all of the evidence for the prosecution. (2B) The Children's Court must discharge a person who makes a request under subsection (2) in relation to an offence if it is of the opinion, after all the evidence for the prosecution has been taken, and having regard to all the evidence before the Court, that the evidence is not capable of satisfying a reasonable jury beyond reasonable doubt that the person has committed an indictable offence. (3) Notwithstanding subsection (1)— (a) if a person is charged before the Children's Court with an indictable offence, and (b) if the Children's Court states that it is of the opinion, after all the evidence for the prosecution has been taken— (i) that, having regard to all the evidence before the Children's Court, the evidence is capable of satisfying a jury beyond reasonable doubt that the person has committed an indictable offence, and (ii) that the charge may not properly be disposed of in a summary manner, the proceedings for the offence must not be dealt with summarily but are to be dealt with as committal proceedings in accordance with Division 3A. (3A) Notwithstanding subsection (1), if a person is charged before the Children's Court with a child sexual assault offence, and the prosecution requests that the proceedings be dealt with according to law (and not summarily) in accordance with Division 3AA, the proceedings are to be dealt with as provided for by that Division. (3B) If the Children's Court states that it is of the opinion, after taking evidence in accordance with Division 3AA— (a) that, having regard to all the evidence before the Children's Court, the evidence is capable of satisfying a jury beyond reasonable doubt that the accused person has committed a child sexual assault offence, and (b) that the charge may not properly be disposed of in a summary manner, the proceedings for the child sexual assault offence must not be dealt with summarily but are to be dealt with as committal proceedings in accordance with Division 3A. (3C) If the Children's Court, after taking evidence in accordance with Division 3AA, does not form the opinion referred to in subsection (3B)— (a) the proceedings for the child sexual assault offence must be dealt with summarily (subject to any other exceptions provided for by this section), and (b) subsection (3) ceases to apply to the child sexual assault offence. (4) If, in the circumstances referred to in subsection (3) or (3B), the Children's Court commits a person for trial, the Children's Court shall forthwith furnish to the person a statement of the reasons for its decision to commit the person for trial instead of dealing with the matter summarily. (5) Notwithstanding subsection (1)— (a) if a person is charged before the Children's Court with an indictable offence, and (b) if, at any stage of the proceedings, the person pleads guilty to the charge, and (c) if the Children's Court states that it is of the opinion that, having regard to all the evidence before it (including any background report of a kind referred to in section 25), the charge may not properly be disposed of in a summary manner, the proceedings for the offence must not be dealt with summarily but are to be dealt with as committal proceedings in accordance with section 31H. s 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. Analysis 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.' 2. The most significant consideration is the appropriate penalty, the court needs to consider whether it would be inappropriate to impose a sentence other than a control order. The court then needs to consider the length of the order and whether full time detention will be served. The court then needs to consider if an individual sentence of two years or an aggregate sentence of three years would be inadequate. The court then needs to consider whether the appropriate sentence 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 to section 33A Children's (Criminal Proceedings) Act 1987). 3. It is conceded that having regard to all matters relevant to sentencing AK a control order pursuant to section 33(1)(g) is the only appropriate penalty. 4. In advancing the application pursuant to section 31(5), the Crown did not submit that an aggregate sentence below 3 years would be inappropriate and in and of itself require a finding that the matters could not be properly disposed of summarily. 5. Having regard to the submissions on sentence and the follow factors, I am satisfied that an aggregate sentence of below three years would not be inappropriate. 6. The maximum penalty for Aggravated Break, Enter and Commit Serious Indictable Offence, Larceny, is 20 years. 7. The maximum penalty for Taking and Driving a Conveyance Without the Consent of the Owner is 5 years. 8. The objective seriousness of the Aggravated Break, Enter and Steal is moderately below middle range given that: 1. It occurred at 3.30am. 2. There were three offenders, the victim was aware of at least two persons being inside her premises. 3. The victim was 75 years of age. 4. The offenders entered by breaking glass within the front door. 5. The victim awoke to the sound of breaking glass and felt a pillow type item placed over her head, as she investigated what was occurring one of the male offenders entered her room, said no and pushed her to the floor. A doona was then placed over her. The second male offender said, "I have found the keys," before the car keys were taken and the three offenders left. 6. The item taken from the home was the motor vehicle keys. 7. The offence is aggravated by the use of actual violence, with the victim being pushed and falling to the floor and having been committed in the home of the victim. 1. The objective seriousness of the take and drive offence is below mid-range given that: 1. The vehicle was taken and driven for just under 24 hours, 2. Before it was involved in a collision with two parked vehicles. 1. Both offences are aggravated by virtue of AK being on conditional liberty, parole, bail, and bonds at the time of the offending. 2. AK pleaded guilty at an early opportunity and is entitled to a discount of 25%. 3. There is no evidence of significant planning and the offences were opportunistic in circumstance where they were travelling to Victoria and their car had broken down. Limited attempts were made to avoid detection. 4. The background report indicates AK firsts contact with Youth Justice was in July 2020 when he was first remanded into custody with numerous interactions with Youth Justice since this time, including serving other periods of detention subject to control orders. 5. He has been engaging positively with custodial staff since his most recent detention and is actively engaged in structured programs in detention. He has not had any misbehaviours or incidents recorded since his admission on 7 June 2022. 6. The report outlines a childhood exposure to drugs and alcohol at a young age as well violence. He had significant family trauma as a child as two relatives were murdered by their respective partners. 7. A psychological assessment was completed in late 2021 by Ms Sarah Barrett Jones, Clinical psychologist from Frank Baxter Detention Centre which recorded diagnosis of conduct disorder, substance use disorder, post traumatic stress disorder, anxiety, depression, obsessive compulsive disorder and oppositional defiant disorder as well as ADHD. 8. The assessment found that his decline in mental health occurred after the murder of two of his close family members, which led to an attitude towards life where he didn't care if he lived or died, and he relied more heavily on substances to self-sooth. Substance abuse likely resulted in disinhibition, exacerbated his pro violent tendencies and contributed to his poor decision making. 9. I note at the time of the commission of these offences he reported being affected by methamphetamine, cannabis, alcohol and antipsychotic medication, Seroquel. 10. These are matters in accordance with the principles of Bugmy v The Queen (2013) 249 CLR 571 reduce his moral culpability for the offending behaviour noting the nexus between his childhood deprivation and use of alcohol at the age of 8 years and methamphetamine and cannabis from a young age. 11. AK had been residing with his mother and six siblings since his release on parole on 27 January 2022 and reported struggling to reintegrate into the community as he had become climatized to being in juvenile detention. He has a strong attachment to his mother, who remains supportive of him. 12. AK shows insight and expresses remorse to the author of the background report. He made further admissions to the author in relation to being the driver at the time the car crashed. 13. There are positive factors towards rehabilitation. I have also had regard to his age. However, given AK's record, his significant drug addiction and his mental health diagnosis I am guarded about his prospects of rehabilitation. Section 33A – "Continuously Detained" 1. Moving then to the crux of the application, the interpretation of section 33A and the meaning of "detained for a continuous period." 2. Whilst there is no published decision in relation to this section. I am aware and have made the parties aware of a recent decision of the President of the Children's Court Judge Skinner on this issue of 9 September 2022. [1] 3. I agree with Her Honours approach to statutory interpretation and that 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. I agree with Her Honours decision that the text of section 33A(4) is clear when using the word detained to mean in custody, under restraint. 4. "Detained" is defined by the Macquarie Dictionary to include; "to keep under restraint or in custody." 5. "Continuously" is defined by the Macquarie Dictionary to include: "having the parts in immediate connection, unbroken" and "uninterrupted in time; without cessation." 6. This interpretation is supported by the construction of the word detained in the context of the section where the legislator has referred to both "control order" and "detained" distinctively within the section. The parliament has intentionally not used the words "control order" in this jurisdictional limit. They have not precluded the Children's Court from imposing an order that would have the effect or requiring a person to be subject to a "control order" for a continuous period of more than 3 years. 7. This is a clear distinction from s 58 of the Crimes (Sentencing Procedure) Act 1999. 8. Further to this, the Explanatory Note for Children (Criminal Proceedings) Amendment Act No. 75 1989 which inserted the new section 33A states: "Schedule I (13) inserts a new section 33A to provide for the circumstances in which the Children's Court may make orders under section 33 (I) (g) committing a person to the control of the Minister administering the Children (Detention Centres) Act 1987 that take effect consecutively, rather than concurrently. The proposed section will preclude the Court from making control orders if, as a consequence, a person would be required to be detained in a detention centre for more than 3 years. Schedule I (21) makes a consequential amendment to Schedule I to the Act." (emphasis added) 1. These words are unequivocal. 2. Section 4 of the Children (Detention Centres) Act 1987 defines "detention centre" as premises the subject of an order in force under section 5(1). 3. Section 5(1) provides that "The Minister may, by order published on the NSW legislation website, declare any premises specified or described in the order to be a detention centre for the purposes of this Act." 1. A person is not in a detention centre once released to parole. 2. This interpretation is also supported by section 33 of the Interpretation Act 1987, "In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose." 1. This interpretation of the Statute is further confirmed when one considers the purpose of the Act, to allow young persons to have criminal proceedings finalised in the specialist jurisdiction of the Children's Court. 2. I note the Crown's submission in relation to section 30 of the Children (Detention Centres) Act 1987 and defining "detention order" to include a sentence of imprisonment, and also a "juvenile offender" as a person subject to control. This definition does not assist in the interpretation of s 33A(4) as the parliament again has distinctively used the words "detained for a continuous period" and not "detention order". In doing so they have distinguished between the meaning of "detention order" and "detained for a continuous period." 3. I agree that AK is subject to a detention order whilst on parole, but this is distinct from his actual detention in a detention centre. 4. I note Mr Harrison's submissions in relation to what "detained for a continuous period" means. I do not agree. The plain and clear interpretation of the word "continuously" means uninterrupted in time. It is clear this means once a young person is released from a detention centre that continuous period is broken. 5. The Children's Court has the jurisdiction to impose a sentence on AK that commences on any day from 7 June 2022 when he was taken into custody and 27 July 2023 when his parole expires. 6. The Court cannot impose a sentence that would expire after 6 June 2025. May not be properly disposed of in a summary manner 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 inappropriate, it moves to consider additional factors that may indicated 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. 3. These principles relate to the exercise of functions under the Children (Criminal Proceedings) Act 1987, including: (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 The Director of Public Prosecution [2005] NSWSC 760 at paragraph 53, Kirby J confirmed that the issues arising under sections 31(3) and 18 are similar such that a Magistrate may be expected to have regard to the criteria set out in s 18(1A) notwithstanding that the section applies to a person who is to be sentenced in a court other than the Children's Court. 2. Section 18(1A) provides: 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. 1. Section 31(3)(b)(ii) is in identical terms as section 31(5) provides "…that the charge may not properly be disposed of in a summary manner and so are matters which this court is expected to also have regard." 1. The Crown made limited oral submissions in relation to the section 18 factors. I did not understand his submissions that any of the section 18(1A) factors in of themselves would warrant the court to find that these two charges may not be properly disposed of in a summary manner. 2. Mr Harrison provided fulsome submissions in relation to section 18(1A) factors and invited the court to find that in all the circumstances the two indictable offences could properly and appropriately be disposed of in the Children's Court Jurisdiction. Section 18(1A)(a) – the seriousness of the indictable offence concerned 1. Aggravated break, enter and commit larceny has a maximum penalty of 20 years. The circumstance of aggravation relied on is the offence being committed in company. There are further aggravating features of actual violence and having been committed in the home of the victim. 2. The larceny involved the taking of a car key, used to facilitate the offence of taking and driving the victim's car, an offence which carries a maximum penalty of 5 years. There was little planning between the offenders and minimal attempts made to seek to avoid identification and apprehension. There is nothing to allow the court to find that the offenders were in the home for more than a few minutes. Section 18(1A)(b) – the nature of the indictable offence concerned 1. The two offences are both property offences, with the offenders identifying a vehicle they wished to take and breaking into the home to find the key to access and drive the vehicle. While in the home they were confronted by the victim who was pushed to the floor. Section 18(1A)(c) The age and maturity of the person at the time of the offence and at the time of sentencing 1. AK was 16 years and 4 months at the time of the offending and is 16 years and 9 months as of today. He was still well below adult age at the time of the commission of the offences. 2. AK has a number of mental health diagnosis and was exposed to trauma and harm as a young child. He has expressed insight into his behaviour. However he clearly continues to lack insight into why he commits such offences as he stated to the author of the background report: "why the fuck did we do that, I did not expect that to happen." Section 18(1A)(d) – the seriousness, nature and number of any prior offences committed by the person 1. The first offences recorded on AK's Criminal history were committed in July 2020 when he was 14 years and 5 months. He has received control orders for Robbery in company, Robbery armed with an offensive weapon, Aggravated break and enter in company with other offences including custody of knife in public place, carried in conveyance and larceny taken into account on Form 1s. He has been placed on bonds pursuant to section 33(1)(b) for custody of knife in public place and been cautioned for possession prohibited drugs. As previously stated, he has been serving a control order since 7 June 2022, had parole revoked and been on remand for these and other offences. 2. AK has a significant record for his age involving a number of serious examples of indictable offences. Section 18(1A)(e) Such other matters as the court considers relevant. 1. Procedurally if the matters remain in the Children's Court they can be finalised today. If they are transferred to the District Court noting the current listings at Albury District Court, AK would likely be sentenced in 2-3 months. This is relevant as it is critical that young persons are able to have their proceedings finalised expeditiously to reduce anxiety and to allow them to transition from remand to sentence and to focus and prepare for returning to the community. 2. There is no single or combination of factors relevant to the sentencing of AK that leads to a conclusion that these two offences cannot be properly disposed of in a summary manner. ORDER 1. The Children's Court is of the opinion that, having regard to all of the evidence before it (including the background report) the charges may properly be disposed of in a summary manner. ********** Endnote 1. This judgment has since been published on New South Wales Caselaw: R v CL [2022] NSWChC 5. 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 May 2023