New South Wales Supreme Court CITATION : Regina v M.B. No. 2 [2006] NSWSC 1163 HEARING DATE(S) : 16/10/2006 JUDGMENT DATE : 10 November 2006 JUDGMENT OF : Howie J at 1 DECISION : The application is refused. CATCHWORDS : Criminal Law - Practice and Procedure - Children - Publication of name of offender on sentencing - whether in the interests of justice. LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 - ss 11(4B), 11(4C) Crimes (Sentencing Procedure) Act 1999 - s 3A PARTIES : Regina v M.B. FILE NUMBER(S) : SC 2005/2014 COUNSEL : W. Creasey - Crown G. Grogin - Offender SOLICITORS : S. Kavanagh - Crown Nyman Gibson Stewart - Offender IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HOWIE J FRIDAY 10 NOVEMBER 2006 2005/2014 REGINA v M.B. No. 2 JUDGMENT 1 HIS HONOUR: The Court has sentenced M.B., the offender, to a term of imprisonment for the offence of murder. The sentence is comprised of a non-parole period of 16 years 6 months and a balance of term of 5 years and 6 months. The Court made an order directing that he serve his sentence until aged 21 years as a juvenile offender. 2 The Crown has made an application that the Court makes an order under s 11(4B) of the Children (Criminal Proceedings) Act 1987. That subsection permits a court, when sentencing a person who is of, or above, the age of 16 years for a serious children's indictable offence, to make an order authorising the publication or broadcasting of the person's name. Unless the Court grants that authorisation, it is an offence for the name of the offender to be published. However s 11(4C) provides that a court cannot make such an order unless it is satisfied: (a) that the making of such an order is in the interests of justice, and (b) that the prejudice to the person arising from the publication or broadcasting of the person's name in accordance with such an order does not outweigh those interests. The burden of proving that the court should make an order is upon the Crown. 3 I have some difficulty in ascertaining what factors might be relevant to the making of a finding that it is in the interests of justice to identify to the public in general the name of a juvenile who committed an offence for which the court has imposed sentence, even where the offence is one as serious as murder. Clearly the general rule found in the legislation that the name of a juvenile offender should not be published is designed to assist the person's rehabilitation and reintegration into the community. It is generally held to be important that a juvenile offender should not be stigmatised by reason of some offence committed when the person is likely to be immature and less responsible for criminal misconduct than is an adult. There may not be the same need to protect the public against an offender who is a juvenile. 4 However for the purposes of the section, the interests of justice must go beyond a consideration of the welfare of the particular juvenile and outweigh any prejudice that might be occasioned to the particular person by the making of the order authorising publication. It might not be difficult to understand where the interests of justice lie where the identification of the offender might assist in the further investigation of the particular crime for which sentence has been imposed, especially where the crime being investigated is very serious. But there is no suggestion of that being the case here. The interests of justice must, therefore, be advanced by the public being informed of the identity of the offender as an end in itself, either because the public has an overriding interest in knowing the identity of the offender or because the identification of the offender will in someway advance the purposes of punishment for which sentence is being passed in accordance with s 3A of the Crimes (Sentencing Procedure) Act 1999. 5 In the present case the Crown has not suggested that the offender presents such a risk to public safety that his identification is in the interests of the community. The offence, as brutal as it was, is not of that character. There is little prospect of his re-offending in that way again simply because of the maturity he will gain by the effluxion of time while he is in custody. In any event the offender will be in custody for such a period of time that it is unlikely that current public fears, if there were any, would continue until his release. 6 Although the deceased's family clearly have an interest in the punishment of the offender, I fail to see how their interests are advanced or vindicated by the identification of the offender by name. In any event, the Crown did not suggest that the making of the order would be in the interests of justice for any reason connected with the deceased or his family and friends. 7 The Crown did argue that general deterrence would be less effective if the offender was not identified. I do not understand that submission with respect. Surely the deterrent effect of the sentence, if there is any, is reflected in the fact that a juvenile offender of no prior criminal convictions must serve over 16 years in prison for a spur of the moment act of senseless violence. I cannot see how the deterrent effect of that sentence is increased because the identity of the offender is made known. It might be different if the offender had a certain fame or notoriety within the community at the time of offending. In such a case it might be significant that the community was made aware that such a person could not escape appropriate punishment simply by reason of his or her status in the community. But that is not this case. 8 The Crown relies upon the fact that there are persons in the community who are aware of his identity, such as those associated with him in the football club, or at school, or even at his church. But it does not seem to me to be relevant that there is a small section of the community that is aware of the offender's identity. Nor does that fact seem to me to be particularly remarkable. Young persons often have more involvement in community activities, such as school and sports clubs, than adults so that there is often more awareness in the community of what a juvenile does or what happens to the juvenile amongst the circle of persons that knew him or knew of him. 9 The Crown submitted that it was preferable that the identity of the offender be made known formally than continuing the situation where persons in the community, who are aware of it, might publish it either intentionally or by accident. I think it is highly unlikely in the extreme that the sentencing of the offender is going to make the publication of his identity more likely by those who are already aware of it. But in any case, it is hardly in the interests of justice to publish the name of the offender because there may have been, or may be in the future, breaches of the law by those who are aware of his identity. After the publicity of the trial in the media, where it was made clear that the identity of the accused person could not be revealed, it would be difficult for someone who was aware of the name of the offender to argue that he or she did not know it could not be published. 10 It seems to me that one effect of the publication of an offender's name, and perhaps the principal one in the vast majority of cases, is to shame the offender in the eyes of the community. I am aware of some suggestion having been made that denouncing the offender, rather than the crime committed, may have some benefit in terms of restorative justice. This argument is based, so far as I understand it, on an assertion that the community is unwilling to accept the contrition of an offender without an element of antecedent shaming. The Crown did not argue in the present case that it was in the interests of justice to publicly shame the offender and thus I have received no assistance on this question from argument or evidence. Therefore, I need not consider this as a relevant matter in determining the application. 11 It may be, as the Crown argued, that in the present case, by reason of the lengthy period in custody that the offender must serve before being released into the community, there would be little actual prejudice to him by his public identification. The Crown submitted that there was less risk of the offender being stigmatised than might otherwise be the case because he would most likely return to PNG, either voluntarily or involuntarily, once he is released. I cannot take into account such a possibility. The Court does not generally have regard to possible executive action, such as deportation of an offender, because it is an uncertain event. In any event the Court has to be satisfied that the interests of justice outweigh any prejudice to the offender. An order under the section cannot be justified on the basis that there will be no prejudice caused to the offender even though the Court cannot discern how the making of the order will advance the interests of justice. 12 I accept that the commission of the offence had wide media reporting within the Newcastle area. The trial also received significant media attention. But these facts do not indicate to my mind that the interests of justice require that the offender be identified. The public interest will no doubt be short lived and much of it satisfied by knowledge that a juvenile was charged, convicted and sentenced for the crime. I doubt that there is a legitimate public interest in knowing the name of the juvenile or what he looked like. In any event the court has to reach a positive satisfaction that it is in the interests of justice that the offender's name be published. I am not able to reach such a conclusion. 13 The application is refused. ********** 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.