R v AN (No 2) [2015] NSWSC 308

Supreme Court New South Wales

Medium Neutral Citation: R v AN (No 2) [2015] NSWSC 308 Hearing dates: 13 March 2015 Date of orders: 13 March 2015 Decision date: 13 March 2015 Jurisdiction: Common Law Before: Hall J Decision: Order made pursuant to s 19(1) and 19(3) of the Children (Criminal Proceedings) Act 1987 that the offender serve his non-parole period as a juvenile offender until the day upon which he attains the age of twenty-one years. Catchwords: CRIMINAL LAW – sentencing – manslaughter – juvenile offender – whether there were circumstances falling within the provisions of s 19(4)(b) and/or (c) Children (Criminal Proceedings) Act 1987 which would warrant an order that the offender should remain in juvenile detention – evidence furnished by Juvenile Justice supportive of finding of special circumstances – offender had special education and therapeutic needs – desirable for order to be made under s 19 – order made that offender serve his non-parole period as a juvenile offender until he turns 21 Legislation Cited: Children (Criminal Proceedings) Act 1987 Category: Sentence Parties: Regina (Crown) AN (Offender) Representation: Counsel: P Leask (Crown) J Spencer (Offender)

Solicitors: Solicitor for Public Prosecutions (Crown) John B Hajje & Associates (Offender) File Number(s): 2011/333568 Publication restriction: Non-Publication order in relation to the name of the Offender and all under-age witnesses

Judgment 1. On 19 December 2014 I delivered Remarks Sn sentence, citation R v AN (2014) NSWSC 1879, in which at paragraph [100] I, in effect, reserved the question of whether an order should be made under s 19 of the Children (Criminal Proceedings) Act 1987. 2. The proceedings were listed this morning for the purposes of dealing with an application for an order under that section. 3. Since the remarks on sentence a report from Juvenile Justice has been produced dated 16 February 2015 which became Exhibit "F" in the sentence proceedings. The report was prepared by Stefanie Wong and Sarah Abusharif of Juvenile Justice NSW. 4. Mr Spencer of counsel on behalf of the offender has submitted that the report provides an evidentiary basis for the making of an order under s 19(4)(b) of the Act. Whilst he acknowledged that the report does not expressly deal with the availability of educational programmes of the quality and nature referred to in Exhibit F in adult correctional institutions, he submitted that the evidence otherwise strongly supports the application and that the omission in the report to address the lastmentioned matter does not stand in the way of the making of an order for the offender's continued detention in a juvenile detention centre. 5. The Crown has in effect submitted that the above report is relevant to issues arising under s 19(4) and that the order sought may be made given that the evidentiary material is now supportive of the application and, further, that an inference can be drawn that the equivalent is not available in such an adult institution. 6. The authors of Exhibit F interviewed the offender on three occasions, 6 January 2015, 28 January 2015 and on 13 February 2015. Exhibit F, is a very detailed report and I commend the authors of it for the diligence and speed with which they have produced a report of such quality. 7. It indicates that the offender commenced attending the Girrakool school full-time on 21 January 2015 and that steps have been taken to have him admitted to the School for Higher School Certificate studies and, additionally, for him to be enrolled in a Diploma of Engineering course at a university by distance education. The nature of the schooling indicates that he will have available direct supervision of his work and there will be small pupil to teacher ratios, all of which I have no doubt are specially tailored for the education of juvenile offenders. Such education facilities are, I infer, different from those that would be available for a person of his age in an adult prison. 8. Apart from the educational facility and associated arrangements that are now in place and operating for the offender, the report indicates that there are also specific therapeutic programmes that are available to assist the offender dealing with, amongst other things, issues designed to address the particular risks of re-offending that might otherwise exist. It is plain from the report that these therapeutic programmes are tailor-made and directed to assisting the rehabilitation of juvenile offenders. 9. The provisions of s 19 of the Children's (Criminal Proceedings) Act place constraints on the making of orders for detention of offenders in juvenile institutions and an order cannot be made unless a finding of special circumstances supported by evidence is made under s 19(4). In this case the "special circumstances" are said to relate to the availability of the educational programmes to which I have referred as well as the vocational training. That would be sufficient to justify an order under s 19, although, as I have already noted, Exhibit F also refers to therapeutic programmes within the meaning of s 19(4) that are available to assist in the rehabilitation of the offender. 10. Section 19(4A) states that a finding of special circumstances may not be made simply because of a person's youth. The evidence makes it clear that the offender does have special education needs as well as therapeutic needs in the sense to which I have already referred that require special, rather than ordinary, educational or vocational training that may not be available elsewhere. Unless his educational needs as identified in the evidence are met, his capacity to gain insight and re-integrate into the community in the future may not improve. Accordingly, it is desirable in this case that an order be made under s 19 where the evidence before the Court indicates that it ought be made in the interests of the community as well as the offender. 11. I note a finding of special circumstances under s 19 does not permit an order to be made that goes beyond the offender's twenty-first birthday. 12. In all the circumstances I make a finding of special circumstances; that is on the basis of the educational and vocational training and therapeutic programmes that are available and are suitable to meet the offender's needs in the institution where he is presently held. On that basis I make an order pursuant to s 19(1) and 19(3) of the Children (Criminal Proceedings) Act 1987 directing that the offender serve his non-parole period as a juvenile offender until the day upon which he attains the age of twenty-one years. 13. In terms of sentencing the offender on that basis, it is my intention that he will be able to remain in a children's detention centre as a juvenile offender until the day he turns twenty-one whereupon he may be transferred to an adult prison.