R v John [2023] NSWChC 6

Children's Court New South Wales

Medium Neutral Citation: R v John [2023] NSWChC 6 Hearing dates: 16 June 2023 Date of orders: 16 June 2023 Decision date: 16 June 2023 Jurisdiction: Criminal Before: Children's Magistrate Hayes Decision: s 33(1)(a)(i) dismissal and s 33(1)(b) bond Catchwords: CHILDREN – Criminal Law – Youth Koori Court – Section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) – Best interests of Child Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) United Nations Convention on the Rights of the Child Cases Cited: R v GDP (1991) 53 A Crim R 112 BP v R [2010] NSWCCA 159 R v Blackman and Walters [2001] NSWCCA 121 R v Zamagias [2002] NSWCCA 17 KT v R [2008] NSWCCA 51 Re Tracey [2011] NSWCA 43 R v Candace Martin [2017] NSWSC 1498 Category: Principal judgment Parties: Rex (the Crown) John (the young person) Representation: Mr Kitchen (Prosecutor) Ms Gilles (Young person) File Number(s): 2022/00241984 Publication restriction: Pseudonyms have been used to protect the identity of the child.

JUDGMENT

Background 1. John is proudly Wiradjuri. 2. John graduates Youth Koori Court ('YKC') today.

The Youth Koori Court 1. The YKC is established pursuant to the President of the Children's Court of New South Wales' Practice Note 11. 2. The YKC is not legislated. 3. It is an alternative process of Aboriginal and Torres Strait Islander young people charged with criminal offences before the Children's Court. 4. The Children (Criminal Proceedings) Act 1987 (NSW) ('the Act') applies. 5. The YKC identifies relevant risk factors that impact on the young person's involvement with the criminal justice system and develops appropriate individualised therapeutic and other interventions to address those risk factors through an Action and Support Plan. 6. The voice of the young person ('YP') is vital in the collaborative development of an Action and Support Plan. The YP assists in identifying risk factors and agrees to the supports in the Plan. 7. On approval of an Action and Support Plan, the case is adjourned pursuant to s 33(1)(c2) of the Act. 8. The adjournment is generally for the purposes of assessing the YP's capacity and prospects for rehabilitation or for the purpose of allowing the person to demonstrate that rehabilitation has taken place. 9. The YKC lists the matter every two to four weeks for a review. 10. The review allows the Court to monitor compliance of both the YP and the service providers with the Action and Support Plan. 11. Reviews focus on the welfare of the YP. The YP is literally and metaphorically at the centre of the Court. 12. Court begins with a welcome or acknowledgment to Country, introductions by those present, an explanation of what the Court listing is about and what the Court is trying to achieve - and why. 13. The YP speaks directly to the Court and actively participates in their review in a culturally safe environment. 14. The frequency of reviews builds trust between the YP and the Court. 15. Trust facilitates an aim of the YKC, to increase young people's confidence in the criminal justice system. 16. The YKC process contrasts with the experience that may otherwise occur in a busy Court - despite best intentions. Dealing with traumatised people, in an unwelcoming environment, with little explanation of the process or the purpose, with limited opportunity to participate, sometimes devoid of trust, possible long waits, all with a focus on statute that seemingly holds the person liable for actions with little regard to their own personal context. 17. During his time in the YKC, John spoke to the Children's Court Magistrates and Registrars about his experience in the care and protection system. John was very impressive, communicating with an insight that could only come from intelligence and lived experience. 18. At today's review, prior to sentencing, I asked John how he felt addressing the gathering. John said he was angry because these were the people that removed him from his parents, his culture, his community.