Regina v Brown [2000] NSWCCA 548

New South Wales Court of Criminal Appeal

CITATION : Regina v Brown [2000] NSWCCA 548 revised - 7/02/2001 FILE NUMBER(S) : CCA 60512/2000 HEARING DATE(S) : 8 December 2000 JUDGMENT DATE : 8 December 2000

PARTIES : Crown - Respondent Harold BROWN - Applicant JUDGMENT OF : Simpson J at 1; Dowd J at 31

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0192 LOWER COURT JUDICIAL Blanch CJ/DC OFFICER :

COUNSEL : Mr L B Lamprati - Crown Mr P J D Hamill - Applicant SOLICITORS : S E O'Connor - Crown D J Humphreys - Applicant

Crimes Act 1900 LEGISLATION CITED : Criminal Procedure Act 1986 Children (Criminal Proceedings) Act 1987 CASES CITED: R v Fernando 76 A Crim R R v Karhani, unreported 14 October 1998 per Greg James J DECISION : Leave to appeal granted, the sentence imposed be quashed. In substitution the applicant be sentenced to imprisonment for a period of four years, with a non-parole period of fifteen months, the sentence to commence on 27 January 2001. Order directing that the whole of the sentence be served in a detention centre.

IN THE COURT OF CRIMINAL APPEAL 60512/00

SIMPSON J DOWD J

Friday 8 December 2000

REGINA v Harold BROWN Judgment

1 SIMPSON J : On 2 June 2000 the applicant entered a plea of guilty to a charge of aggravated break enter and steal committed by him, in company with others, on 18 November 1998. S112(2) of the Crimes Act 1900 prescribes a maximum penalty of twenty years' imprisonment where a person convicted under the section is an adult or is, for the purposes of sentencing, to be treated as an adult. The applicant asked that a further count of breaking and entering a dwelling house with intent to commit a serious indictable offence be taken into account pursuant to s 21 of the Criminal Procedure Act 1986. 2 The applicant was born on 4 May 1981 and was seventeen years of age at the time he committed the offence. He was, accordingly, a "child" within the meaning of the Children (Criminal Proceedings) Act 1987 ("the Act"). He was arrested and charged on 28 September 1999, when he was still under the age of twenty-one years. 3 Accordingly, Division of Pt 2 of the Act applied. As the offence to which the applicant pleaded was not a serious indictable offence, as defined in s 3 of that Act, the judge had the option of dealing with the applicant according to law (that is in accordance with sentencing procedures applicable to adult offenders), or in accordance with the procedures prescribed for the Children's Court by Pt 3 of the Act. 4 His Honour elected to deal with the applicant according to law and imposed a term of imprisonment for four years with a non parole period of two years. He specified that the sentence was to commence on 27 January 2001. This was because the applicant was already subject to a sentence imposed by the Nowra Local Court in relation to an escape from lawful custody. 5 It will be necessary to refer again to that offence, together with other offences the applicant has committed and sentences that have been imposed upon him. 6 The sentencing judge was asked, but declined, to make an order pursuant to s19 of the Act directing that the whole, or, alternatively, part of the term imposed be served in a detention centre. It will be necessary also to return to this matter.