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. Sentence 1. The Court considers several matters on sentence: * Agreed facts * Criminal record * Background material * Youth Justice background report * Report from current caseworker, and * Review reports 1. The Court considered all this material on sentence. 2. The concluding remarks by Youth Justice in their final report is that: John has attended all court dates and has spoken in a mature, insightful and confident manner at each appearance. He has always been open to guidance from YKC. John completes his time with YKC in stable accommodation, employment and with an excellent network of support. Submissions 1. Ms Gillies prepared a summary of factors that the Court must consider on sentence. 2. Mr Kitchen principally submitted on the seriousness of the offences, the maximum penalties for the offences (particularly for the aggravated break and enter offences), the protection of the community and recognition of the harm done. 3. The Court agreed with Ms Gillies assessment as to the timing of the pleas and the aggravating and mitigating circumstances. 4. The Court agreed with Mr Kitchen on the need to protect the community, the seriousness of the offences and the need to recognise the harm done. Practice Note 11 1. On sentence, the Court must consider the young person's participation in and, where appropriate, their completion of the YKC process. 2. John participated in the YKC for eight months. During this time, he has remained offence free. 3. John exceled in the achievement of all goals of his Action and Support Plan. Children (Criminal Proceedings) Act 1987 ('The Act') 1. The Act governs the jurisdiction of the Children's Court and sets out the main provisions relating to criminal proceedings against children. 2. The Act provides little guidance as to sentencing considerations. 3. In my experience, the most referred to section in sentencing proceedings is s 6 of the Act. 4. These principles were critically considered in R v GDP (1991) 53 A Crim R 112. 5. It was observed by the New South Wales Court of Criminal Appeal at 115-116 that: There are now legislative guidelines in the treatment of young offenders. Some of these guidelines consist of sentiments and admonitions which are so general as to be of little assistance in the sentencing of young offenders. 1. Further, I observe: 2. Section 6(a) sits in contrast to statute, common law, and international law where children have greater rights than adults because of their vulnerability, not equal rights. 3. Subsections (b), (g) and (h) pay no regard to the context of a child's own circumstance beyond general dependency and immaturity. The Act is saying, on the face of it, irrespective of their background, children bear responsibility for their actions and ought to make reparations. 4. Conventional wisdom suggests punishment for children should be directed towards changed behaviour, not retribution. 5. In any event, Hodgson JA in BP v R [2010] NSWCCA 159 turns retribution in a different direction at [4]-[5]: "… even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability…" 1. The importance of 'changing behaviour is observed in R v Blackman and Walters [2001] NSWCA 121 where Wood CJ at 44 refers from the judgment of King CJ in Yardley v Betts (1979) 22 SASR 108 at 112-3: "The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an order to avoid offending in future, the protection of the community is to that extent enhanced". 1. In R v Zamagias [2002] NSWCCA 17, Howie J said at [32]: "It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender …" 1. Subsection (e) is better expressed in common law where the penalty for a child is ordinarily less that that imposed on an adult. 2. R v GDP highlights that subsections (c) and (d) – and this Court adds (f) – each infer the importance of rehabilitation; though with no specific reference to rehabilitation. 3. Those subsections support rehabilitation by allowing a child to continue in education and employment, allowing a child to reside in their home and to assist with reintegration to family and community. 4. However, in the case of John, who was physically taken from his primary school, removed from his home because he was said to be unsafe and separated from his community through removal and multiple placements – (c), (d) and (f) have, even today, little relevance. 5. These subsections do not consider the context of the child. Punishment does not link to the welfare of the child. 6. Whilst the Act provides little guidance as to the importance of rehabilitation, interestingly, s 33(1AA) directs the Court to consider the potential impact of a fine on the rehabilitation of a child. 7. The common law and human rights better support the consideration of potential impacts on the child when dealing with more invasive penalties. Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSPA') 1. The CSPA has specific reference to rehabilitation. This is set out in s 3A as a 'purpose of sentencing'. 2. Section 33C of the Act determines that the provision of Parts 3 and 4 of the CSPA apply in the Children's Court. The Court applies Parts 3 and 4 where relevant. 3. Section 3A is in Part 1. 4. Section 3A, therefore does not apply to the Children's Court. Common law 1. Common law, often referred to as 'judge-made' law, is separate from statute law. 2. Statute law prevails over common law if there is a conflict. 3. Whilst the common law is significant in sentencing in the Children's Court, the Children (Criminal Proceedings) Act 1987 does not apply in higher Courts at first instance. 4. Consequently, the vast majority of the common law derive from cases not dealt with under the Act. 5. Those common law principles were summarised by McClellan CJ at CL in the decision of KT v R [2008] NSWCCA 51 at [22]-[26]. 6. None of those principles conflict with the Act and are relevant in this sentencing exercise. 7. The Court makes allowance for youth and the significance of rehabilitation, consistent with the common law. Human rights and discretion 1. Human rights are found in international agreements. 2. Agreements include the United Nations Convention on the Rights of the Child (CROC). 3. Article 3 of the CROC states: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration". 1. In Re Tracey [2011] NSWCA 43, Spigelman CJ said at [45]: "In my opinion, these provisions of the CROC are capable of being relevant to the exercise of the discretion to make the relevant order sought by the appellant…". 1. It was accepted that when the Executive undertakes an obligation, binding as a matter of international law, even if not adopted by the legislature, the judiciary should recognise that the national interest is best served if any such international obligation is considered in its own decisions, when permissible and appropriate but it is not mandatory. 2. In R v Candace Martin [2017] NSWSC 1498, Hamill J considered the principles of the United Nations Convention on the Rights of the Child in determining the appropriate sentencing response. 3. The Act allows significant discretion in sentencing proceedings – from recording convictions to penalty options. 4. The best interests of a child should be given consideration, amongst other factors, when sentencing in the Children's Court. 5. The Court has regard to the best interests of John by not imposing a conviction that may harm later career opportunities; and penalties that will not interfere with his continued productive life. Changed behaviour 1. John participated in the YKC for eight months. He has remained offence free. 2. John has a positive and mutually respectful relationship with his current caseworker. 3. John exceled in the achievement of all goals in his Action and Support Plan. 4. John is gainfully employed, he is a leader in his local community, he spreads his wisdom and experience through music and advocacy. John participated in a TEDx Sydney Youth event. 5. Recently, John and other impressive young people attended Court. They told me that at a team sporting event (that they excel in) - they were abused. My words: they were racially vilified. Way worse than what was said to Latrell Mitchell in Canberra, though equally unacceptable – and in this instance adults abusing kids. 6. In the past these boys said they would have fought but, collectively, they said they didn't want to get into trouble. They didn't even shape up but stood their ground. They were prouder of their behaviour than angered by the abuse. At Court, their Elders were also proud. 7. Section 6 principles include a right to be heard. 8. John's voice seems to me to suggest that the Court is practiced at removal from the environment – removal of children in care proceedings, bail conditions, place restrictions, removal from community by control orders. But changing the environment makes more sense than removing people from the environment. 9. Ideally, sentencing should produce not just changed behaviour but social change for public good. This is consistent with some parts of statute. Sentencing 1. In dismissing the less serious charges and imposing bonds for the more serious matters, I have considered all the material before the Court, including purposes of punishment, facts, reports, record, rehabilitation, submissions, statutes, common law and convention. 2. I now proceed to sentence. ********** Amendments 27 June 2023 - Minor amendment to cover sheet 30 June 2023 - Typographical error at paragraph 45 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 June 2023