AA v R [2010] NSWSC 703

New South Wales Supreme Court

CITATION : AA v R [2010] NSWSC 703

HEARING DATE(S) : 30 June 2010

JUDGMENT DATE : 30 June 2010

JURISDICTION : Common Law Division Criminal List

JUDGMENT OF : Kirby J

DECISION : Pursuant to s 19(3) of the Children (Criminal Proceedings) Act 1987, the applicant AA serve the remainder of his sentence, before release to parole, as a juvenile offender.

CATCHWORDS : CRIMINAL LAW - juvenile convicted of manslaughter - application to serve prison term in juvenile centre - whether special circumstances as defined - HSC courses not offered by adult gaols - order that juvenile remain in juvenile centre to complete education

LEGISLATION CITED : Children (Criminal Proceedings) Act 1987

CATEGORY : Consequential orders

PARTIES : AA Regina

FILE NUMBER(S) : SC 2009/3729

COUNSEL : J Stratton SC (AA) P Barrett (Crown)

SOLICITORS : K Kyriacou (AA) L Burgoyne - DPP (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUSTICE DAVID KIRBY

Wednesday 30 June 2010

2009/3729 REGINA v "AA"

JUDGMENT ON MOTION 1 KIRBY J: On 28 May 2010, I sentenced AA to imprisonment with a non parole period of 3 years 7 months to date from 9 January 2008 and to expire on 8 August 2011, with a total sentence of 6 years 3 months to date from 9 January 2008 and to expire on 8 April 2014. He will be eligible for release to parole on 8 August 2011. 2 At the time of sentencing AA, he was housed in a juvenile justice centre. During the submissions on sentence, application was made on behalf of AA, under the Children (Criminal Proceedings) Act 1987, for an order that he remain at the juvenile centre. It was asserted that there were special circumstances as defined by s 19(4) of the Act. The evidence relied upon at that time did not appear adequately to address the requirements of s 19(4)(b) concerning the programmes being undertaken by AA and their availability outside juvenile justice centres. I gave leave to make further application, providing further evidence, if so advised. 3 On 25 June 2010, a Notice of Motion was filed seeking an order that AA serve the remainder of his sentence within a juvenile justice centre. The Motion was supported by an affidavit by Mr Kiki Kyriacou, the solicitor for AA. It annexed various reports. One was from William Alexander, the Principal, and Alan de Joux, the Assistant Principal of Girrakool Education and Training Unit of 24 June 2010. The report confirmed that AA was currently enrolled at the Girrakool Education and Training Unit. He is currently studying for his Higher School Certificate and is enrolled in a number of subjects, including Information Technology. He has the benefit of intensive teacher support, with access to a computer and supervised internet access. The report from the Girrakool states that, if relocated to an adult correctional centre, there is uncertainty regarding his ability to continue and complete his Higher School Certificate. 4 A further report is also annexed from Anthony Becker, the Principal of the Adult Education and Vocational Training Institute within the New South Wales Department of Corrective Services (AEVTI). Corrective Services New South Wales "does not deliver" the HSC to inmates. There are opportunities to study the HSC by some form of correspondence. Where that is done, administrative support and tutorial support may be required. Not all correctional centres have the resources to provide that level of support, according to the report from the Principal of the Training Institute. 5 The Crown does not oppose the making of the order which is sought, provided the person is otherwise eligible. 6 AA was born in May 1990. He will attain the age of 21 years in May 2011. He will be eligible for parole on 8 August 2011. Section 19(2)(a) is in these terms: "s19(2) A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless: (a) in the case of a sentence for which a non-parole period has been set – the non-parole period will end within 6 months after the person has attained that age, or ... " 7 The non parole period set in respect of AA will end within six months of his attaining the age of 21 years. He is therefore eligible to serve the balance of his non parole period as a juvenile offender. 8 I am satisfied that there are special circumstances as defined by s 19(4)(b) justifying the order which is sought.