Important cases

[9-1000] Admission of evidence

Last reviewed: Oct 2023

Gray v R [2020] NSWCCA 240

Evidence Act 1995 ss 12, 13 — witness competence — 5-year-old child complainant diagnosed with autism spectrum disorder and hearing impairment — judge did not err by finding complainant competent to give unsworn evidence — Witness Intermediary Assessment Report indicated complainant able to give evidence if appropriately questioned — question of reliability separate to competence.

CO v DPP [2020] NSWSC 1123

Children (Criminal Proceedings) Act 1987 s 25 — background reports — magistrate erred by sentencing plaintiff without background report — breach of s 25 invalidates sentence — matter remitted to Children’s Court.

PQR v DPP (NSW) [2020] NSWSC 731

Appeal against magistrate’s refusal to hear three sets of charges separately — plaintiff charged with indecent assault offences against three complainants — evidence of each complainant cross-admissible as tendency evidence — court does not have jurisdiction to intervene to disturb magistrate’s refusal of application for separate hearings — applicant has failed to identify a question of law alone or jurisdictional error — leave not granted.

Johnson v The Queen (2018) 266 CLR 106

“discreditable conduct evidence” admitted under s 34P(2) Evidence Act 1929 (SA) to show propensity — appellant convicted of five counts of sexual offending against the complainant, his sister — Crown relied on uncharged acts as relationship or context evidence to rebut presumption of doli incapax and to show relationship between appellant and complainant — evidence of other sexual misconduct admissible — probative value substantially outweighed any prejudicial effect to the appellant — appeal dismissed.

Tikomaimaleya v R (2017) 95 NSWLR 315

Children’s evidence — examination-in-chief given by a complainant in recorded interview with police — witness to be competent at time of interview — trial judge not obliged to direct jury of distinction between sworn and unsworn evidence — no requirement to warn jury of reliability of unsworn evidence s 165(2) Evidence Act 1995 — judge did not err by admitting complainant’s pre-recorded interview — significant advantage in jury seeing and hearing witness — evidence did not give rise to reasonable doubt — appeal allowed and dismissed.

R v SG [2017] NSWCCA 202

Appeal — exclusion of corroborating evidence by child — respondent charged with multiple offences of assaulting wife — 10-year-old daughter of respondent/victim gave evidence to police — trial judge ruled evidence not relevant — further determination evidence be excluded as probative value substantially outweighed by danger of unfair prejudice — relevance under Evidence Act 1995 to be given wide interpretation — evidence could rationally affect assessment of probability facts in issue under s 55 — judge erred in not assessing probative value of evidence under s 137 — evidence could be tested in court to remove risk of unfair prejudice — held evidence relevant and admissible — appeal allowed.

AL v R [2017] NSWCCA 34

Young offender — appeal — sexual intercourse with a child under the age of 10 — offender aged 12 to 13 and complainant aged 4 to 5 — whether trial judge failed to appropriately warn the jury as to the unreliability of the complainant’s evidence — s 165 of the Evidence Act 1995 direction — Murray direction — capacity of jury to assess evidence — whether trial judge failed to adequately direct jury as to the burden and standard of proof – whether trial judge failed to adequately direct jury as to the accused’s evidence — whether judge failed to adequately direct jury on question of doli incapax — RP v The Queen (2016) 259 CLR 641 considered (see [9-1140]) — whether verdict unreasonable or cannot be supported by evidence — open to jury to find guilt beyond reasonable doubt — appeal dismissed.

The Queen v GW (2016) 258 CLR 108

Young offender — 6-year-old witness — directions — Uniform Evidence Law — competence — s 13 Evidence Act 2011 (ACT) (in virtually identical terms to s 13 Evidence Act 1995 (NSW)) — pre-trial ruling that young child witness’ evidence be received unsworn — ruling open — Court of Appeal (ACT) erred in holding the trial judge should have directed the jury as to the differences between sworn and unsworn evidence in assessing the reliability of the witness’ evidence — neither the common law nor the Evidence Act required such a direction.

JB v R (No 2) [2016] NSWCCA 67

Young offender — murder committed on 21 April 2008 — material discovered subsequent to the exhaustion of the avenues of appeal — application for inquiry into conviction made to Supreme Court pursuant to s 78 Crimes (Appeal and Review) Act 2001 — referral to Court of Criminal Appeal under s 79(1)(b) Crimes (Appeal and Review) Act 2001 — concession by Crown that appeal must succeed and conviction be quashed — new trial should only be ordered where it would more adequately remedy the miscarriage of justice than any other order the Court could make — undertaking by Crown not to call a compromised witness on retrial — evidence of that witness very important in original trial — remaining evidence not capable of proving applicant guilty of murder — detailed analysis of evidence likely to be called at retrial — evidence unlikely to establish guilt of applicant — interests of justice did not require that a new trial be had — verdict of acquittal entered.

DPP v Martin (a pseudonym) [2016] VSCA 219

Young offender — incest involving biological sister attributed to the respondent when he was aged 16 — prosecution sought to lead other acts of misconduct when he was aged between 11 and 13 as “context evidence” — whether exclusion of “context evidence” would substantially weaken the prosecution case — trial judge ruled against admissibility — whether error in treating presumption of doli incapax as relevant when assessing admissibility of the “uncharged” acts — presumption not relevant in way in which invoked — appeal allowed — matter remitted to trial judge for reconsideration.

JP v DPP (NSW) [2015] NSWSC 1669

Young offender — aggravated breaking and entering — fingerprint left at the scene — challenge to admissibility of fingerprint expert’s conclusion that plaintiff’s fingerprint found at the crime scene — whether admission of expert certificate involved a question of law alone — whether ground involved mixed question of fact and law — whether magistrate’s reasons for admitting certificate inadequate — whether magistrate’s reasons for convicting plaintiff inadequate — complaint not made out — whether magistrate wrongly purported to apply different standard to admission of expert evidence in Children’s Court compared to other courts — complaint not made out that magistrate devolved decision-making task to expert — leave to challenge conviction refused.

[9-1020] Admissions

Last reviewed: Oct 2023

R v Cortez (unrep, 3/10/2002, NSWSC)

Young offenders aged 17 years at the time of arrest and interview — murder — admissibility of certain statements — application for evidence to be excluded under s 90 Evidence Act 1995 — police gave no indication that the young offenders were under arrest or suspected of murder — whether each offender could be deemed to have been arrested — whether the accepted support person attending the interview with each offender was appropriate — whether each offender was made aware of his entitlements or properly advised as to the seriousness of his position — failure to be told of the right to obtain free legal advice — the offenders were not afforded the protection the legislature intended — evidence tendered was inadmissible by virtue of s 90 and in breach of s 138 Evidence Act as evidence improperly obtained.

R v Phung [2001] NSWSC 115

Young offender aged 17 years — armed robbery and murder — admissibility of certain statements — objection to two electronic records of interview — compliance with s 13 Children (Criminal Proceedings) Act 1987 and Pt 10A (rep) Crimes Act 1900 as to the provision of a support person — whether the accused was properly advised as to his entitlements — whether offered the opportunity of obtaining legal assistance — overall irregularity in compliance with the statutory regime although various irregularities were not contumelious or deliberate — serious concern as to whether the rights of the accused were properly protected — in combination, there were sufficient circumstances involving non compliance with the statutory regime, so as to give rise to serious concern as to whether the accused, a 17-year-old with a somewhat disturbed background, had been sufficiently advised as to his rights, and as to whether those rights were adequately protected, to require exclusion of the evidence under ss 90 and 138 Evidence Act 1995.

[9-1040] Appeal

Last reviewed: Oct 2023

Kannis v R [2020] NSWCCA 79

Conviction appeal — applicant pleaded guilty to child pornography and grooming offences — full-time custodial sentence imposed with applicant to be released on recognizance release order after 15 months — reliance upon sentencing decisions failed to give effect to findings favourable to applicant — sentencing decisions dissimilar to applicant’s case in significant respects and did not identify sentencing range — applicant re-sentenced to imprisonment to be released after 11 months on recognizance release order.

BC v R [2019] NSWCCA 111

Conviction appeal — applicant sentenced for 20 counts of child sexual assault offences — applicant was aged between 11–13 at the time of committing three counts of child sexual assault offences — evidence in Crown case did not rebut presumption of doli incapax — no evidence of applicant’s maturity or intelligence — guilty verdicts unreasonable for counts 1–3 — tendency evidence correctly admitted — common features of each incident sufficiently specific and of significant probative value — directions to jury about use of tendency evidence ameliorated its prejudicial effect — applicant’s convictions quashed in respect of counts 1–3 and re-sentenced — imposition of a new sentence deferred until further hearing on tendency evidence.

[9-1060] Apprehended violence orders

Last reviewed: Oct 2023

Police v BS [2011] CLN 4

Children — criminal — young offenders — double jeopardy — charges establishing contravention of AVO — same facts for each offence — prosecution to elect which charge to proceed.

[9-1080] Arrest

Last reviewed: Oct 2023

DPP (NSW) v SB [2020] NSWSC 734

Appeal against dismissal of proceedings for assaulting police officer in execution of duty and resist/hindering police officer in execution of duty — objective test of lawfulness under s 99(1)(b) LEPRA — reasonably necessary to arrest to protect workers from Housing NSW and the applicant from committing further offences — arresting officer’s state of mind, that it was reasonably necessary to arrest, relevant under s 99(1)(b) — appeal allowed — matter remitted to Local Court.

DPP (NSW) v GW [2018] NSWSC 50

Appeal — breach of bail — evidence obtained improperly and excluded under s 138 Evidence Act 1995 — the failure by arresting officer to consider arrest alternatives — arrest for breach of bail without consideration of alternatives is not necessarily improper — court did not adequately disclose reasoning nor conclusions of facts — Supreme Court unable to determine finding of fact in regards to magistrate’s finding of impropriety — magistrate failed to conduct a balancing exercise under s 138 — appeal allowed in part.

DPP (NSW) v CAD [2003] NSWSC 196

Young offenders — allegations of assaulting a police officer — informations against defendants in the Children’s Court dismissed — appeal — whether magistrate wrong in refusing to receive certain evidence of the events giving rise to the charges — whether matter should be restored to the Children’s Court — whether complainant had acted unlawfully or improperly in arresting a young person for a minor offence in circumstances that did not call for an arrest — whether it was possible for the magistrate to apply the test mandated by s 138 Evidence Act 1995 — whether matter to be remitted to the magistrate to be dealt with according to law.

[9-1100] Bail

Last reviewed: Oct 2023

R v GW [2023] NSWSC 664

Applicant is 11-year-old Aboriginal child — offences of aggravated break, enter, and steal; armed robbery; larceny; destroying property; being carried in a conveyance without consent; and riot — present allegations committed while applicant subject to bail for a number of different charges — Juvenile Justice not able to provide formal supervision because applicant had not entered any pleas of guilty to the offences — distinction between “bail supervision” and “bail support” at [36]–[40] — essential that children who have a multiplicity of complex needs are provided with the support, supervision, and guidance they require in the community as opposed to having them detained in custody — service providers actively engaged — multiple underlying issues that need to be addressed — necessary to ensure that a suitably qualified individual coordinates the various services — Applicant released on bail with conditions.

R v JB [2023] NSWSC 94

Bail Act 2013 s 19(1) — applicant is a 14-year-old Aboriginal child — initially granted bail, then bail refused after further offending — Youth Justice can supervise a child on bail in the community where the child has pleaded not guilty to the offence — applicant has complex needs and vulnerabilities that are better treated and protected in the community — applicant has strong family and community ties — proposed bail conditions ameliorate risk of reoffending — conditional bail granted.

R v JH [2023] NSWSC 93

Applicant is 12 years old — offences of shoplifting, minor violence towards his carer, using lighters to damage property and allegation of breaking into a school and causing damage by fire — application is opposed by the Crown due to risk of nonappearance, risk of commission of a further serious offence and risk of danger to the victim, individuals and/or community — Bail Protocol, which prohibits supervision by Youth Justice of young people on bail unless there has been a plea of guilty or a finding of guilt, is not a necessary precondition to supervision on bail — appropriate that a young person with vulnerability should be supported and supervised intensively in the community rather than detained — bail granted.

DPP (NSW) v PH [2022] NSWSC 1245

Bail Act 2013 s 22B — defendant 14 years old at time of offences, now 16 years — pleaded guilty to child sexual assaults — no prior convictions — no drug and alcohol dependencies — Aboriginal background — bullied at school — father died when defendant 10 years, grandfather, a primary carer, died recently — sexual abuse as a child — court must consider three questions: s 22B Bail Act, whether it is “practically inevitable” that defendant will be the subject of full-time imprisonment when he is sentenced; whether there are special or exceptional circumstances that should not lead to immediate detention; whether there are any risks that are unacceptable and that cannot be ameliorated by conditions — not satisfied that full-time incarceration is practically inevitable — difficulty of attending grandfather’s funeral if defendant was in custody would constitute special circumstances — on bail for 2 years without further criminal conduct — essential precondition for engagement of s 22B Bail Act not established — detention application is refused — bail condition varied so defendant is not to be alone with any child under 13 years.

R v LM [2022] NSWSC 987

Bail Act 2013 ss 19, 22B — release application — applicant 16 years old — arrested for offence of armed robbery — applicant also faces charges of two counts of assault occasioning actual bodily harm; two counts of using an offensive weapon with attempt to commit an indictable offence of intimidation; four counts of damaging property; and one count of reckless wounding in company — court not satisfied, on balance of probabilities, that applicant will be sentenced to imprisonment to be served by full-time detention — test in s 22B does not apply — applicant must still satisfy unacceptable risk test under s 19 — charges reflect a large number of very serious allegations, repeatedly involving use of a knife — unacceptable risk of further serious offence — unacceptable risk of danger to community — bail refused.

JD v Commissioner of Police, NSW Police Force [2022] NSWSC 911

Bail Act 2013 s 8(2) — appeal against bail determination — plaintiff 15 years old during original proceedings — pleaded guilty to counts of larceny, robbery, using an offensive weapon to commit an indictable offence, destroying or damaging property — bail granted — sentencing decision and bail variation application listed on same day — magistrate made finding of failure to comply with a bail condition after sentencing decision — Bail Act s 8(2) bail decision cannot be made if substantive proceedings for the offence have concluded and no further substantive proceedings are pending before a court — once sentences were handed down, magistrate ceased to have jurisdiction to determine whether plaintiff had failed to comply with bail — “bail decision” in s 8(2) is confined to 4 types of bail decisions listed in s 8(1) and, by extension, to a variation application, but it does not include the discrete determination of whether a person has failed to comply with a bail condition — magistrate applied incorrect standard of proof in making a failure to comply finding — jurisdictional error established — appeal upheld — order that plaintiff breached a condition of bail set aside.

R v ET [2022] NSWSC 905

Bail Act 2013 ss 22, 22B(1)(a) — bail sought after conviction for affray but before sentence — applicant in custody for 2 years 3 months and 16 days — at time of offending applicant aged 17 years — need to show special or exceptional circumstances if time he has presently served will or might not be less than the sentence that might be imposed upon him when he comes to be sentenced — non-parole period will probably not exceed time applicant has spent in custody on remand — special or exceptional circumstances shown — bail concern not an unacceptable risk — bail granted on conditions.

R v Fontaine (a pseudonym) [2021] NSWSC 177

Application to delete curfew condition — 10-year-old applicant — no evidence of offending at night — bail conditions are calculated to mitigate risk — must be reasonably necessary, reasonable and proportionate, and no more onerous than necessary — should not be used to attempt social engineering or for paternalistic interventions — curfew condition deleted.

AB v R (Cth) [2016] NSWCCA 191

Bail application — youth aged 17 years with psychiatric issues and a history of making threats and self-harm — charged with intentionally doing an act in preparation for or planning a terrorist act — threatening posts on Facebook placed over a significant period of time — whether exceptional circumstances established — youth held to pose an unacceptable risk of committing a serious offence and endangering the safety of the community if released — bail refused.

R v NK [2016] NSWSC 498

Young offender was a school student 16 years old living with her mother and siblings — charged with an offence of collecting funds for, or on behalf of, a terrorist organisation — application for bail refused in the Children’s Court — rebuttable presumption against bail being granted to a person charged with a terrorism offence — exceptional circumstances to justify the granting of bail — youth of the applicant — vulnerability of youth to adult persuasion or influence — bail conditions can be imposed to appropriately address bail concerns.

[9-1120] Brain science

Last reviewed: Oct 2023

R v JR [2022] NSWDC 618

Offender, 14 or 15 years of age, and the victim, 8 or 9 years of age, are stepbrothers — all counts involved fellatio — Juvenile Justice Background Reports indicate offender has no pre-existing psychological injuries and enjoyed a good upbringing, but struggled emotionally due to having lost friends to suicide and had a self-reported addiction to pornography — offender’s compulsive pattern of pornography use exacerbated mental health difficulties and contributed to offending behaviour — offender has undertaken and completed an active course of treatment and is placed within low range for violent reoffending — age of offender at time of offending and efforts at rehabilitation weighed against objective seriousness of offending — offender released on Community Correction Order.

LCM v State of WA [2016] WASCA 164

Manslaughter of the offender’s newborn son — offender aged under 16 years — highly dysfunctional childhood — sentence of 10 years’ detention — appeal — new evidence that offender suffered from foetal alcohol spectrum disorders (FASD) — relevance of FASD to sentencing — whether a material mitigating factor — offender re-sentenced to a term of 7 years’ detention.

Ingrey v R [2016] NSWCCA 31

Aboriginal offender — sentence appeal — applicant aged 19 at time of offence — found guilty after trial of one count of attempted robbery armed with a dangerous weapon — ss 97(2) and 344A(1) of the Crimes Act 1900 (NSW) — sentencing judge had no regard to applicant’s social disadvantage when exercising sentencing discretion — applicant’s disadvantaged background was a factor the judge ought to have considered: at [35]; Bugmy v The Queen (2013) 249 CLR 571 — error in failing to take into account a material consideration; House v The King (1936) 55 CLR 499 — supportive family background taken into account — applicant’s exposure to crime at an early age among members of his wider family and peers — interplay of conflicting sentencing considerations — independent re-exercise of the sentencing discretion — mitigating factors — age of applicant — exposure to criminal activity during his formative years — potentially crushing nature of a sentence which the applicant is already serving — other factors taken into account: lack of remorse, lengthy criminal history and poor compliance with supervision — sentence reduced.

[9-1140] Doli incapax

Last reviewed: Oct 2023

BDO v The Queen [2023] HCA 16

Criminal liability and capacity — 11 Sexual assault offences, five of which were alleged to have been committed when the appellant was under 14 years of age — s 29(2) Criminal Code (Qld) provides that a person under 14 is not criminally responsible for an act, unless it is proved the person had capacity to know that they ought not act (no NSW equivalent) — presumption of incapacity under s 29(2) not equivalent to moral wrongness required by common law (RP v The Queen (2016) 259 CLR 641) but is informed by it — difference between what is meant by a person's capacity to know and their knowledge — distinction between ability to understand moral wrongness with what in fact they know or understand — appeal allowed, convictions quashed for the relevant five counts and remitted for resentencing.

EL v R [2021] NSWDC 585

Conviction appeal — appellant 13-and-a-half years old — found guilty of charges of robbery armed with offensive weapon and dishonestly obtain a financial advantage by deception — diagnosed with Autism Spectrum Disorder, Attention Deficit/Hyperactivity Disorder and Oppositional Defiant Disorder — use of alcohol and drugs — emotional maturity is similar to that of someone aged between 10 and 12 years of age — lacks capacity to understand the impact of his actions on others — numerous suspensions from schools, homeless, and un-medicated at time of offence — not satisfied that the Crown has proved beyond reasonable doubt that appellant knew, at the time of the offence, that what he was doing was seriously or gravely wrong — Crown has not rebutted the presumption of doli incapax beyond reasonable doubt — appeal upheld.

Pickett v WA (2020) 270 CLR 323

Sexual assault offences — ss 7(b), (c), 8, 29 Criminal Code (WA) — group of eight males, including a child aged 11 years, assaulted victim — child offender inflicted fatal stab wound — under s 29 Criminal Code child offender could not be criminally responsible for acts unless he had capacity to know he ought not to do act — no evidence to establish capacity — Crown alleged seven males, who did not stab victim, deemed to have taken part in committing offence under ss 7(b), (c) or 8 — regardless of one person having an immunity from criminal responsibility, ss 7 and 8 is not prevented from operating against the other persons — ss 7 and 8 expression “an offence is committed” taken to include not only an act or omission which renders the actor liable to criminal punishment but also an act or omission which, but for the actor or omitter being excused of criminal responsibility, would be an “offence” — appellants’ liability does not depend upon proof beyond reasonable doubt either that child offender had capacity to know that he ought not to strike the blow, or that he did not strike that blow — appeal dismissed.

RP v The Queen (2016) 259 CLR 641

Criminal liability and capacity — doli incapax — appellant convicted of two counts of sexual intercourse with a child under 10 — the appellant’s brother is the complainant — appellant was 11 years and six months at time of offending — appellant found to be of very low intelligence — prosecution required to point to evidence from which an inference can be drawn beyond reasonable doubt that child’s development is such that he/she knew that it was morally wrong to engage in conduct — prosecution did not adduce any evidence to establish appellant’s understood the moral wrongness of his acts — appellant’s conduct went well beyond ordinary childish sexual experimentation, but not conclusive that he understood his conduct was seriously wrong in a moral sense, as distinct from being rude or naughty — appellant knew about anal intercourse and to use a condom which strongly suggests he had been exposed to inappropriate sexually explicit material or subjected to sexual interference — earlier convictions unreasonable because rebuttal of presumption the appellant was doli incapax was not established to criminal standard — appeal allowed — convictions quashed — appellant acquitted.

RP v R (2015) 90 NSWLR 234

Young offender — sexual intercourse with a child under 10 years — accused aged between 11 and 12 years, 3 months — accused was older half-brother of victim — doli incapax — whether presumption rebutted — what acts may be considered — whether surrounding circumstances of first offence could be used in assessing if presumption rebutted for later offences — ground of appeal asserting unreasonable verdict — how Court of Criminal Appeal considers unreasonable verdict ground in a judge-alone trial — accused occupied a position of trust — see also RP v The Queen (2016) 259 CLR 641.

RP v R [2015] NSWCCA 215

Conviction and sentencing appeal — sexual intercourse with a younger half-brother under 10 years of age — aggravated indecent assault — accused aged between 11 and 12 years at the time of offending — judge-alone trial — sole issue at trial was doli incapax — not open to his Honour to conclude that the Applicant was in a position of trust with respect to the complainant — trial judge did not err in failing to take into account s 22A Crimes (Sentencing Procedure) Act 1999 — power to reduce penalties for facilitating the administration of justice — not necessary to consider whether sentence imposed was manifestly excessive — necessary to consider whether lesser sentence warranted after an independent exercise of sentencing discretion — see also RP v The Queen (2016) 259 CLR 641 and RP v R (2015) 90 NSWLR 234.

R v GW [2015] NSWDC 52

Doli incapax — age of criminal responsibility — defacing a wooden bench with a graffiti item — presumption that child between 10 and 14 years not criminally responsible — whether presumption of no criminal responsibility of child rebutted — previous findings of guilt — whether issue of doli incapax requires urgent attention by the legislature — s 4(1) Graffiti Control Act 2008.

DPP (NSW) v NW [2015] NSWChC 3

Young offender — intellectual disability — aggravated indecent assault upon a person under 16 — offender approximately 13 years and 1 month at time of the alleged offence — sexual harm counselling prior to alleged offending conduct — development of a safety plan — offender of low intelligence but on the evidence the offender possessed an appreciation of the seriousness of his conduct — presumption of doli incapax rebutted — offender had knowledge of conduct as being gravely or seriously wrong in a moral sense.

RH v DPP (NSW) [2014] NSWCA 305

Children — criminal — young offenders — appeal — doli incapax — age of criminal responsibility — break-in at a country fire station — child aged 12 when offence occurred — presumption that child between 10 and 14 years not criminally responsible — whether presumption of no criminal responsibility of child rebutted — use of subjective test to determine whether presumption rebutted — see also RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520 at [9-1140].

RH v DPP (NSW) [2013] NSWSC 520

Offender aged 12 —aggravated break and enter — break and enter at an emergency services building (a country fire station) in the company of another — issue on appeal whether prosecution rebutted presumption of doli incapax — whether the magistrate erred in law in finding that there was evidence capable of rebutting beyond a reasonable doubt the presumption of doli incapax — whether the magistrate erred in law in applying an objective test to the question of whether the presumption of doli incapax was rebutted beyond reasonable doubt — whether the magistrate erred in law in relying on factual matters that constituted no more than the commission of the offence itself to rebut the presumption of doli incapax — a doli incapax cannot be rebutted merely by virtue of the commission of the offence itself — sufficient evidence to rebut presumption — see also RH v DPP (NSW) [2014] NSWCA 305.

BP and SW v R [2006] NSWCCA 172

Doli incapax — sexual intercourse without consent — in circumstances of aggravation, namely being in the company of another person — appeal — the Crown must prove beyond reasonable doubt that the child (aged between 10–14 years) knew the act was seriously wrong as distinct from an act of mere naughtiness or mischief — the directions given in the case were sufficient — court not satisfied that the jury’s verdict was unreasonable.

[9-1160] Exclusion of evidence

Last reviewed: Oct 2023

R v Mercury [2019] NSWSC 81

Evidence — s 13 Children (Criminal Proceedings) Act 1987 — objection to admissibility of alleged confession to murder — accused aged 17 years at time of interview — no parent, guardian, adult or lawyer present at interview — no rules mandating presence of support person in 1971 — low intellect, immaturity, disturbed upbringing, disturbed mental state and personal vulnerability of accused considered — record of interview inadmissible in the “particular circumstances of the case”.

DS v R [2018] NSWCCA 195

Admissibility of tendency evidence — ss 97 and 101(2) Evidence Act 1995 — presumption of doli incapax as appellant under 14 years of age — tendency incidents subject of acquittals based on failure to prove offender capable of criminal intent — principle that prosecutor cannot rely upon conduct, which has been the subject of a previous charge and acquittal, in a way which would controvert the acquittal — evidence has little or no probative value, but involves a significant risk of prejudicial effect — evidence of appellant’s alleged prior sexual conduct should not have been admitted — appeal upheld, conviction quashed.

Application of the Attorney General for NSW dated 4 April 2014 [2014] NSWCCA 251

Submission by Attorney General to court of Criminal Appeal of questions of law after the accused is acquitted of the murder of a child — trial judge sitting alone in the Supreme Court made order for the production by Department of Family and Community Services of reports concerning the deceased child — whether court precluded from making such an order by s 29 Care Act — s 29 should not be construed so as to preclude the accused in a criminal trial from compelling, by subpoena, production of s 29 reports that are relevant to the issues at the trial — principle of legality requires that the general words of s 29 should be read down so as not to interfere with the accused’s fundamental right to a fair trial.

R v FE [2013] NSWSC 1692

15-year-old girl — improperly obtained evidence — whether grave improprieties — failure to caution the accused prior to or during questioning — interview conducted notwithstanding initial refusal to answer questions — whether unfair deprivation of right to silence — failure to take the accused to the custody manager who was obliged, since she was a vulnerable person, to assist her to exercise her legal rights — the accused’s rights under Pt 9 Law Enforcement (Powers and Responsibilities) Act 2002 were neither read out nor explained to her — interview with the accused excluded — improperly obtained evidence from a juvenile excluded under ss 90, 138 and 139 Evidence Act 1995.

[9-1180] Family violence/dysfunction

Last reviewed: Oct 2023

Ohanian v R [2017] NSWCCA 268

Sentencing — supplying a prohibited drug — early exposure to illegal drug use — dysfunctional childhood relevant — sentencing judge found ample opportunity to reform as “mature” man — approach contrary to Bugmy v The Queen (2013) 249 CLR 571 — effects of childhood deprivation do not diminish — sentencing not manifestly excessive — re-exercise of sentencing discretion warranted due to error — appeal allowed and upheld and original sentence quashed — applicant re-sentenced.

[9-1200] Forensic procedure

Last reviewed: Oct 2023

Kindermann v JQ [2020] NSWSC 1268

Crimes (Forensic Procedures) Act 2000, ss 30, 32, 33, 115A — interim forensic procedure order imposed on child — magistrate erred by finding interim order could not be made without representation and a hearing — only final forensic procedure orders require hearing and representation.

DL v R [2017] NSWCCA 57

Appeal — murder — offender just turned 16 and murder victim aged 15 at time of offence — Crown case included expert blood spatter analysis evidence — expert performed further experiments based on defence case during trial — Crown advised of experiments and how expert would respond if cross-examined on defence case — no report provided — alleged denial of procedural fairness — fresh evidence adduced on appeal — established material error in expert’s evidence at trial — whether there was substantial miscarriage of justice — aside from blood spatter evidence Crown case at trial pointed to guilt beyond reasonable doubt — further evidence available on appeal strengthened Crown case — operation of proviso — appeal dismissed.

Police v JC [2016] NSWChC 1

Crimes (Forensic Procedures) Act 2000 — application for authorisation to carry out forensic procedures on the young person — the applicant must prove the young person was a “suspect” — grounds upon which the person is suspected and the reasonableness of those grounds — on the balance of probabilities the young person was not a “suspect” within the meaning of the Crimes (Forensic Procedures) Act.

TS v Constable Courtney James [2014] NSWSC 984

Suspected offence of aggravated break and enter — appeal against order authorising the taking of a buccal swab — evidence — common ground that the magistrate decided incorrectly that the Evidence Act 1995 (NSW) did not apply to the application for a buccal swab — Evidence Act must be read together with Crimes (Forensic Procedures) Act 2000 along with any other applicable Act — meaning of reasonable grounds for forming a suspicion or belief.

[9-1220] Jurisdiction

Last reviewed: Oct 2023

R v Patrick [2023] NSWChC 4

Patrick 16 years and 9 months at time of offending — charged with robbery in company, use offensive weapon to commit indictable offence and reckless wounding — on parole for a robbery in company and matters of violence at time of offending — R v CL [2022] NSWChC 5 followed: “detained” does not include when a person is in the community on parole — s 53B permits Court to impose an aggregate sentence of up to 5 years including non-parole and parole period — jurisdictional limit of 2 years for a single offence: s 33(1)(g) — sentenced for a non-parole period of 13 months and a total term of 2 years — conviction not imposed due to age, cognitive functioning, the immaturity that comes with not properly understanding consequence and to not hinder rehabilitation.

R v CL [2022] NSWChC 5

CL 17 and a half at the time of alleged offending — charged with aggravated break, enter and commit larceny — Children (Criminal Proceedings) Act 1987 s 31(3) court to determine whether indictable offences should progress through a committal process prior to discharge or committal for trial — evidence is capable of satisfying a jury beyond reasonable doubt that CL committed offences — charges not to be disposed of in a summary manner — CL serving a control order when these offences occurred — “detained” under s 33A(4) refers to a person who is in custody, under restraint, and does not include when a person is in the community on parole — offences cannot properly be disposed of in a summary manner because level of planning, the additional circumstances of aggravation, the value of the property stolen, CL’s age and the fact that the offences were committed in breach of parole on a two-year aggregate control order for like offences — dealt with as committal proceedings.

Lacey (a pseudonym) v Attorney General for NSW (2021) 104 NSWLR 333

Crimes (Appeal and Review) Act 2001, s 53 — application for order that female magistrate hear matter amounted to request for conditional permanent stay — stay may, in an appropriate case, include condition that matter be heard by female magistrate — power available under s 8 Court Suppression and Non-publication Orders Act 2010 to order restricted viewing of evidence in appropriate cases.

R v RI [2019] NSWDC 129

Sexual assault offences — juvenile offender dealt with on indictment — offender 17 years, 11 months and 28 days of age at the time of offences contrary to s 61J Crimes Act 1900 — offender offered to plead guilty to charges in the Children’s Court — offender to be dealt with according to Pt 3 Div 4 Children (Criminal Proceedings) Act 1987 rather than by law — offender found guilty — offender is not to be treated as a registrable person — offender released on probation.

JW v District Court of NSW [2016] NSWCA 22

Dangerous driving causing death — committed for trial in the District Court by a magistrate in the Children’s Court — notice of motion filed in District Court seeking a temporary stay of proceedings — stay of proceedings refused — summons filed in the Court of Appeal — s 69 Supreme Court Act 1970 — order sought to set aside magistrate’s order in the Children’s Court committing applicant for trial — order sought to set aside judgment or order of the District Court refusing stay of proceedings — Court of Appeal has jurisdiction to set aside orders of District Court refusing stay of proceedings — Court of Appeal does not have jurisdiction to set aside orders of Children’s Court magistrate — s 48 Supreme Court Act — proceedings under s 69 concerning orders of a specified tribunal — District Court a specified tribunal under s 48(1) — Children’s Court not a specified tribunal under s 48(1) — s 46(2)(b) Supreme Court Act.

DPP (NSW) v JJM & ALW [2010] CLN 1

Matters to be taken into consideration when determining whether to exercise the discretion under s 31 Children (Criminal Proceedings) Act 1987 and commit the young persons to the District Court to be dealt with according to law.

JIW v DPP (NSW) [2005] NSWSC 760

Sections 6, 18, 31 Children (Criminal Proceedings) Act 1987 — applicant committed for trial rather than dealt with summarily in the Children’s Court — requirement to “… forthwith furnish to the person a statement of reasons for decision” in s 31(4) — magistrate neither erred by failing to give sufficient reasons nor in deciding the applicant should be dealt with according to law.

[9-1240] Juvenile detention centre

Last reviewed: Oct 2023

HJ v R [2014] NSWCCA 21

Applicant aged 17 years and 8 months at the time of the offence — two offences contrary to s 112(2) Crimes Act 1900 — breaking and entering into a house and committing a serious indictable offence — aggravated offence committed in the company of another — application for leave to appeal against sentence — whether the sentencing judge failed to give proper attention to the fact applicant was the mother of a very young baby — whether juvenile detention appropriate if offender has a very young baby — error found — applicant re-sentenced.

R v KT [2007] NSWSC 83

Offender aged 16 — manslaughter by unlawful and dangerous act — offender pleaded guilty to a serious children’s indictable offence — sentencing — offender was in a group of youths engaged in throwing eggs at members of the public from a moving vehicle — the offender had assaulted a man who threw a can back at the car in retaliation — the assault caused the man to fall and strike his head heavily to the ground thereby sustaining fatal injuries — examination of the offender’s background and subjective circumstances — no prior criminal history — whether offender should serve any sentence in juvenile detention, given his age and limitation, rather than in the adult prison system — objective seriousness of the offence assessed — continued detention at the juvenile detention centre — sentenced to a term of 6 years imprisonment with a non-parole period of 4 years — see also KT v R [2008] NSWCCA 51 for application for leave to appeal against sentence at [9-1340].

[9-1260] Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)

Last reviewed: Oct 2023

Poidevin v Semaan (2013) 85 NSWLR 758

Police powers and duties — resisting arrest — power to seize property to prevent breach of the peace — police officer attempted to seize respondent’s mobile phone — police officer obliged to inform respondent, as soon as reasonably practicable after exercising the power, of his name, place of duty and the reason for exercising the power — elements of offence made out even though no evidence that information was given — no obligation to prove that officer formed view that it was impracticable to give information before exercising power — consideration of nature of power at common law and as preserved by statute — s 201 LEPRA.

[9-1280] Mental Health (Forensic Provisions) Act 1990 (now repealed)

Last reviewed: Oct 2023

R v Richard (a pseudonym) [2019] NSWDC 272

Fitness to be tried — accused charged with serious sexual offence — s 10 Mental Health (Forensic Provisions) Act 1990 — fitness tests directed to minimum requirements for a fair trial — experts agree accused is not fit to stand trial due to intellectual disability — matter referred to the Mental Health Review Tribunal for determination pursuant to s 16 Mental Health (Forensic Provisions) Act 1900.

DPP (NSW) v Saunders [2017] NSWSC 760

Appeal — magistrate dismissed charges s 32(3)(b) Mental Health (Forensic Provisions) Act 1990 — order that person attend psychiatrist/psychologist — magistrate must name a particular place or person s 32(3)(b) — enforcement provisions and object and purpose of the Act to be considered — appeal allowed.

Police v DMO [2015] NSWChC 4

Young person pleaded guilty to intimidating police office in execution of his duty — matter set down for defended hearing — whether admission of young person to mental health facility under s 33(1)(b) Mental Health (Forensic Provisions) Act 1990 (MHFP Act) operates to finalise charges — no decisions of intermediate or higher courts dealing with the interpretation of s 33 — an order under s 33(1)(b) where the person is detained in the mental health facility does not operate to finalise charges — s 33 provides court with a mechanism to have persons who appear to be suffering from mental illness to be assessed by an authorised medical officer at a mental health facility — the contention that once the person is admitted the charges cannot be relisted could not have been the legislature’s intention — no requirement in MHFP Act to establish link between offences charged and the mental illness.

[9-1300] Non-publication and suppression orders

Last reviewed: Oct 2023

Burton v DPP [2022] NSWCA 242

Care Act s 105 — appellants argue s 105 invalid for burdening the implied constitutional freedom of communication on political and government matters — prohibition in s 105 only applies when there is some connection in the publication or broadcast between identification of the child/young person and pending, contemplated or completed proceedings, non-court proceedings or a relevant report — implicit that the ability of a relevant child or young person to consent to publication or broadcast does not cease upon them turning 18 — constitutional freedom is burdened insofar as people are prohibited from publicly protesting or discussing the removal of particular children by governmental action — s 105 is not invalid for breach of implied freedom — appeal dismissed.

AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046

Respondent pleaded guilty to historic sex offences committed when he was a child — primary judge ordered non-publication and suppression of respondent’s name under s 8 Court Suppression and Non-publication Orders Act 2010 — suppression and non-publication orders revoked on appeal — appeal against decision not to make non-publication order — court materially misconstrued s 8(1)(c) Court Suppression and Non-Publication Orders Act by adopting probable harm test — calculus of risk approach adopted — evidence of risk of physical harm to applicant — evidence of significant psychological harm to applicant and applicant’s family — circumstances of misreporting by media and threats to applicant — appeal allowed, non-publication order made under s 8(1)(c).

Secretary, DFaCS v Smith (2017) 95 NSWLR 597

Child under parental responsibility of the Minister and in foster care — court engaged a “balancing exercise” of child’s interest — paramount interest of child cannot be raised on appeal — construction of strict liability offence for publication of child’s name contrary to s 105 Care Act — primary judge’s construction not arguably wrong — exercise of discretion in refusing to grant injunction arguably miscarried — leave to appeal refused.

[9-1320] Recording of conviction

Last reviewed: Oct 2023

Cmr of Police, NSW Police Force v TM [2023] NSWCA 75

17 year old respondent sentenced to 14 month good behaviour bond for three possess child abuse material offences under Crimes Act 1900 s 91H(2) — respondent a “registrable person” under Child Protection (Offenders Registration) Act 2000 s 3A but not notified of obligation to report information to Commissioner of Police — charged with failing to comply with reporting obligations under Register — judge at first instance declared respondent’s entry on Child Protection Register erroneous on basis exception in s 3A(2) applied — meaning of “arising from the same incident” in s 3A only if they (i) are committed within a single 24 hour period and (ii) are committed against the same person: s 3(3) — possessing child abuse material involving actual children is an offence committed against those children — offences did not arise from the same incident as they were not committed against the same person — respondent was not entitled to the benefit of s 3A(2)(c)(ii) exception to s 3A(1) — respondent was within s 3A(1) as a registrable person and subject to consequences of that status.

R v Fay [2020] QCA 154

Applicant sought leave to appeal the recording of a conviction — applicant pleaded guilty to one count of armed robbery in company — applicant sentenced to detention for 8 months with an order that he be released immediately, after serving 140 days on remand, and on conditional release for 3 months — conviction was recorded due to seriousness of charge and criminal history — sentencing judge failed to consider relevant countervailing factors and the pre-sentence report — appeal allowed — recording of conviction set aside — order that no conviction be recorded.

Watson v R [2020] NSWCCA 215

Applicant found guilty of contravening child protection prohibition orders — s 3A(2) Child Protection (Offenders Registration) Act 2000 exempts a person from the definition of “registrable person” if offence committed when they were a child or if they were found guilty of a registrable offence before 15 October 2001 — applicant fulfilled both because she committed a single offence involving an act of indecency when she was 13 years old and found guilty before 15 October 2001 — Local Court had no power to make Child Protection Prohibition Order as she was not a registrable person — Crown could not establish that she had contravened order as invalid — matter remitted to District Court for sentence.

Dungay v R [2020] NSWCCA 209

Children (Criminal Proceedings) Act 1987 ss 14, 15 — Appeal against sentence — applicant found guilty of aggravated break, enter and committing serious indictable offence, robbery in company — sentenced to 12 years imprisonment, with a non-parole period of 8 years — court erred in admitting evidence regarding applicant’s Children’s Court criminal history — Bugmy principles applied — youth and history of dysfunction — appeal allowed — applicant re-sentenced to 10 years of imprisonment with a non-parole period of 6 years and 6 months.

[9-1340] Sentencing

Last reviewed: Oct 2023

Severity appeal — dismissed

Carreno v R [2023] NSWCCA 20

Applicant 19 years and 10 months when committed offences, at the time of sentencing applicant was 42 years old — pleaded guilty to specially aggravated break, enter and commit a felony, stealing property in dwelling house and two counts of aggravated sexual assault in company — sentenced to 16 years imprisonment with a non-parole period of 12 years imprisonment — applicant’s youth was appreciated by the sentencing judge but that such factors were to be given “much less weight” in light of the applicant’s behaviour which involved “extreme violence” — emphasis on need to provide an opportunity for rehabilitation has little part to play because sentencing was dealt with so many years after its commission — sentence not manifestly unreasonable — appeal dismissed.

TA v R [2023] NSWCCA 27

Severity appeal — appellant 16 ½ years of age when she committed a series of serious crimes for which she was sentenced to a term of imprisonment — at first instance, the principles in Bugmy v The Queen (2013) 249 CLR 571 were considered due to exposure to risks of psychological harm, physical abuse, sexual acts of exploitation, serious self-harming, risk taking behaviour and significant neglect as a child — mental condition considered — Appellant contended sentencing judge failed to make findings as to her reduced moral culpability — sentencing judge substantively addressed the relevant factors and there is no essential requirement to expressly use the phrase “moral culpability” — appeal dismissed.

CW v R [2022] NSWCCA 50

Appeal against sentence — reckless infliction of grievous bodily harm — victim 9-week-old infant — sentencing Judge took matters of age and dysfunctional childhood into account in accordance with Bugmy v The Queen principles — sentencing Judge took into account impact of applicant’s background on his moral culpability — criminality involved repeated assaults on a helpless infant — stern sentence inevitable — appeal dismissed.

R v Lovett (a pseudonym) [2021] QCA 46

Appeal against sentence — applicant juvenile and convicted of armed robbery in company — sentenced to period of detention of 15 months with conviction recorded — applicant refused to accept responsibility for offence and had relevant lengthy criminal history sentence — recording of conviction did not render sentence manifestly excessive.

Schembri v The Queen [2020] VSCA 217

Severity appeal — sexual penetration of child under 16 (3 composite charges) — Drug trafficking (6 charges) — sentenced to 5 years’ imprisonment, non-parole period 2 years, 6 months — Difference in age and maturity, applicant was 18, victim 13 — Applicant aware sexual activity unlawful — weight given to guilty pleas, prior good character, youth, good prospects of rehabilitation, remorse and delay — Sentence within range — Leave to appeal refused.

SW v R [2019] NSWCCA 194

Severity appeal — applicant pleaded guilty to 3 counts of aggravated sexual intercourse without consent with a person under 16 years and 3 counts of aggravated indecent assault of a person under 16 years — applicant sentenced to an aggregate sentence of 3 years with a non-parole period of 1 year, 6 months — 16-year delay in prosecution — applicant no longer has benefit of serving sentence in juvenile detention centre — offending considered significant and involved coercion — applicant convicted of a number of offences including offences of violence, drug offences, two offences of driving while disqualified and two offences of contravening an apprehended violence order between 2004–2013 — no subsequent sexual offending, but criminal record shows disregard for the law was not the product of mere immature offending — sentence was not unjust nor manifestly excessive — appeal dismissed.

DPP v Hutchison [2018] VSCA 153

Committing indecent act with child under 16 (3 charges), producing child pornography for use through carriage service and knowingly possessing child pornography — sentenced to community correction orders for 3 and a half years, with conditions, and three year good behaviour bond — mitigating circumstances of age, death of mother, groomed online to commit offence — excellent prospects for rehabilitation — sentence imposed by the judge was not manifestly inadequate — appeals dismissed.

DJ v R [2017] NSWCCA 319

Sentencing appeal — 16-year-old pleaded guilty to discharging a firearm with intent to cause grievous bodily harm — applicant/Crown requested sentence for two related offences under s 166 certificate Criminal Procedure Act 1986 — sentences of imprisonment imposed — appeal on grounds that s 166 certificate procedure not available — applicant must establish sentence unreasonable or unjust — sentences not manifestly excessive — appeal allowed and dismissed.

DS v R [2017] NSWCCA 37

Sentencing appeal — leave to appeal granted — youth aged 16 years — affected by alcohol and ecstasy — six offences committed at an 18th birthday party — causing grievous bodily harm with intent — reckless wounding in company causing actual bodily harm — affray — common assault — assault occasioning actual bodily harm — causing catastrophic brain injuries to one victim with consequential cognitive impairments and permanent physical injuries (count 1) — objective seriousness of a high order — whether failure to pay proper regard to the fact that offences other than count 1 could have been dealt with in the Children’s Court — due to the extremely violent conduct, other relevant counts (numbers 3 to 7) could not be dealt with under s 18 Children (Criminal Proceedings) Act 1987 — no miscarriage of justice or serious injustice demonstrated — whether failure to take into account youth’s immaturity other than in relation to the issue of rehabilitation — no failure demonstrated — youth sentenced to an aggregate sentence of 12 years and 6 months’ imprisonment, with a non-parole period of 8 years — aggregate sentence not manifestly excessive — appeal dismissed.

OK v R [2016] NSWCCA 318

Sentencing appeal — youth aged under 18 — cognitive impairment — emotional immaturity — multiple offences — aggravated armed robbery in adult company and armed with a dangerous weapon — aggregate sentence of 11 years’ imprisonment with a non-parole period of 7 years — whether failure to properly apply principle for sentencing youthful offenders — failure to take into account the youth’s no prior criminal history, emotional immaturity and cognitive impairment — no evidence of “profound deprivation” — sentence not manifestly excessive even given the significance of the subjective features affecting the youth — appeal against sentence dismissed.

BH v R [2016] NSWCCA 290

Sentencing appeal — youth aged 17 years and 3 months at time of offence — Attention Deficit Hyperactivity Disorder — borderline intellectual disability — manslaughter — single punch — early guilty plea — sentence of imprisonment of 5 years and 3 months with a non-parole period of 3 years and 11 months — whether sentencing judge sentenced applicant on basis of factual findings not open — matter of motivations a point of serious dispute — sentencing judge made no order under s 19(3) Children (Criminal Proceedings) Act 1987 with regard to the sentence for the serious children’s indictable offence of manslaughter — sentence not manifestly excessive — appeal dismissed.

Kiernan v R [2016] NSWCCA 12

Sentence appeal — wounding with intent to cause grievous bodily harm — s 33(1)(a) Crimes Act 1900 (NSW) — no error in finding that offence was within the midrange of objective seriousness — applicant’s subjective case including abusive upbringing properly taken into account — sentence not manifestly excessive — adult applicant with poor criminal record including a conviction as a juvenile and a history of drug use from the age of 10-years-old — psychologist’s report that applicant was subjected to ritual and constant physical, sexual and psychological abuse — leave to appeal granted but appeal dismissed.

TC v R [2016] NSWCCA 3

Sentence appeal — offender 17-and-a-half at the time of the offence — offender aged 55 years at the time of sentence — indecent assault committed 38 years earlier by the then young person on 9-year-old boy contrary to s 81 (rep) Crimes Act 1900 (NSW) — further historical indecent assault on 12-year-old girl contrary to s 76 (rep) Crimes Act on a Form 1 — sentencing judge convicted applicant and imposed 2-year good behaviour bond — essential objective of application was to have the formal conviction expunged — sentencing judge failed to take into account sentencing options under the Child Welfare Act 1939 (NSW) (rep) — sentencing judge failed to sentence in accordance with standards at time of the offence — sentence imposed on applicant clearly within the range of sentences which could be imposed — sentence not unreasonable or plainly unjust but leave to appeal granted as one ground of appeal made out — appeal against conviction dismissed — offence warranted withholding, to some degree, leniency to the applicant in light of his youth — no lesser sentence warranted in law.

RL v R [2015] NSWCCA 106

Sentencing appeal — sentencing adult for sexual offences committed as juvenile — effect of delay between the commission of the offences and when the charges were laid — whether sufficient allowance made for applicant’s youth at time of offending — whether sentence accorded with sentencing principles applied at time of offending — no need for further rehabilitation — use of victim impact statement — statement not limited to harm directly resulting from offence whether to consider ground of manifest excess if specific error established — whether need for appeal court to determine appropriate sentence — finding that it is not sufficient to ask if impugned sentence within range — Kentwell v The Queen (2014) 252 CLR 601 applied — s 6(3) Criminal Appeal Act 1912.

Johan v R [2015] NSWCCA 58

Sentencing appeal — offences involved the use of dangerous weapons, four armed robbery offences as well as an aggravated break and enter offence, most offences were committed in the company with another person — whether there was failure to give appropriate weight to age and background when assessing moral culpability — compelling evidence of the applicant’s personal circumstances — applicant’s intelligence assessed in the mild intellectual disability range and the applicant had a serious drug habit — whether sentence imposed was manifestly excessive — although leave to appeal was granted, the appeal against sentence was dismissed.

BP v R [2010] NSWCCA 159

Severity appeal — s 61I Crimes Act 1900 — sexual intercourse without consent — applicant a week short of his 17th birthday at the time of the offence — judge erred by using standard non-parole period as a guide — relevance of the applicant’s youth — emotional maturity and impulse control may not be fully developed until the early to mid-twenties — application of R v Fernando (1992) 76 A Crim R 58 — whether appropriate to give effect to the applicant’s deprived background.

YS v R [2010] NSWCCA 98

Aggravated break and enter commit serious indictable offence — sexual assault — circumstances of aggravation in the deprivation of liberty of the victim — young person aged 16 years at the time of the offence — sentence of a term of imprisonment of 8 years — appeal — whether sentence imposed was manifestly excessive because of a failure to properly reflect the applicant’s youth, mental illness and totality in the sentence imposed — principles relating to mental illness and to youth canvassed — no identifiable or manifest error — appeal dismissed.

KT v R [2008] NSWCCA 51

Manslaughter — single punch constituting an unlawful and dangerous act — principles relevant to sentencing young offenders — considerations of punishment, general deterrence and rehabilitation when sentencing young offenders — whether sentencing judge had sufficient regard to offender’s youth and immaturity — whether sentence manifestly excessive — open to sentencing judge to find applicant conducted himself in an adult manner and had committed a crime of violence of considerable gravity (see R v KT [2007] NSWSC 83 at [9-1240]).

R v SDM (1997) 127 A Crim R 318

Offences include stealing a motor vehicle, aggravated armed robbery and maliciously shooting with intent to prevent lawful apprehension — two offenders, including applicant who was a young offender — applicant evidence of an unfortunate family history — two of the crimes committed were of considerable gravity — Judge at first instance was well within the confines of the sentencing discretion he had — appeal dismissed.

Remitted for re-sentencing

TM v R [2023] NSWCCA 185

Appeal against sentence of 3 years imprisonment with non-parole period of 12 months imprisonment — TM 15 years old — pleaded guilty to aggravated robbery causing grievous bodily harm and a further charge of robbery in company was taken into account on sentence — sentencing judge failed to explain how TM’s young age was taken into account when assessing moral culpability — failed to have regard to TM’s young age when considering emphasis to be given to general deterrence — original sentence quashed — resentenced to imprisonment comprising a non-parole period of 9 months, with an additional term of 2 years and 3 months imprisonment.

DS v R (2022) 109 NSWLR 82

Sentence appeal — DM 16 years and 8 months old and DS 15 years — DM and DS had dysfunctional upbringings and mental health issues — various offences including murder and take and drive motor vehicle without consent of owner while owner present in circumstances of aggravation — DS sentenced to imprisonment totalling 18 years and 4 months, including a sentence of 15 years and 4 months for murder — DM sentenced to imprisonment totalling 35 years and 6 months, including a sentence of 31 years and 6 months for murder — assessment of objective seriousness of DS’s offence by reference to DM’s offending was erroneous as proper approach was to sentence DS for offence that he committed — sentence imposed on DS for the take and drive conveyance offence excessive — assessment of objective seriousness of DM’s offence of murder as substantially above the mid-range of objective seriousness was open to sentencing judge — no errors made in sentencing judge’s consideration of youth, background of dysfunction, mental illness — unnecessary to address parity between sentences — sentences imposed on DM manifestly excessive — appeal allowed — DS re-sentenced to an aggregate term of imprisonment of 14 years and 6 months, non-parole of 10 years — DM re-sentenced to an aggregate term of imprisonment of 27 years, non-parole period 20 years and 7 months.

Spinks v DPP (Cth) [2021] NSWCCA 308

Severity appeal — applicant convicted of one count of importing a marketable quantity of MDMA — sentenced to imprisonment for 3 years with 18 months parole — offender aged 18 years at offending — failure to properly consider offender’s youth, prior good behaviour and ongoing rehabilitation — appeal allowed — re-sentenced to imprisonment for 2 years, 3 months, period of full-time custody 15 months, condition of good behaviour for 12 months post-release.

Hoskins v R [2021] NSWCCA 169

Severity appeal — applicant convicted of two counts of reckless wounding, affray, aggravated break and enter and commit serious indictable offence — sentenced to 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months — social disadvantage and hardship — excellent upbringing with non-biological parents until aged 13 — return to biological family where criminal conduct normalised — alcohol and drug abuse, and history of offending — childhood and adolescent years equally formative — primary judge erred in not applying Bugmy v The Queen (2013) 249 CLR 571 principles — reduced moral culpability notwithstanding passage of time and intervening custodial sentences — effects of deprivation do not diminish over time — appeal allowed — re-sentenced to aggregate sentence of 5 years imprisonment with a non-parole period of three years.

WB v R [2020] NSWCCA 159

Severity appeal — applicant 16 years at time of offending, not sentenced until 45 years later — applicant pleaded guilty to attempted buggery and indecent assault on a male — aggregate sentence of imprisonment for 8 years with a non-parole period of 5 years 7 months — applicant sexually abused as a child — assessment of objective seriousness on a collective basis was an error — aggregate sentence manifestly excessive — objective seriousness of offences is below mid-range — leave to appeal granted — appellant sentenced to an aggregate sentence of imprisonment for 3 years with a non-parole period of 2 years.

LS v R [2020] NSWCCA 120

Severity appeal — applicant found guilty under ss 66A and 91H(2) Crimes Act 1900 of producing child abuse material and sexual intercourse with a child under 10 years — sentence of 6 years and 9 months’ imprisonment, with non-parole period of four years imposed — applicant 16 years of age when offences occurred — applicant diagnosed with Autism, Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and Conduct Disorder, expressive and receptive language, sensorimotor difficulties, and attention/executive function deficits — psychology reports show no or very little risk of similar re-offending — offender re-sentenced to an aggregate sentence of 4 years and 9 months’ imprisonment with a non-parole period of 2 years and 9 months.

BM v R [2019] NSWCCA 223

Severity appeal — the applicant was sentenced to an aggregate term of imprisonment for 2 years and 6 months with a non-parole period of 1 year and 3 months for sexual assault on a minor — applicant has a learning disorder and ADHD — applicant aged 13 years at time of offending — sentencing judge did not take applicant’s age and causative mental condition into account in assessing objective seriousness — offending was at or near the bottom of the range of objective seriousness for offences of this kind — re-sentenced to aggregate sentence of 1 year and 6 months with an aggregate non-parole period of 9 months.

Howard v R [2019] NSWCCA 109

Severity appeal — applicant threw an explosive with intent to burn — applicant sentenced to imprisonment for 9 years, 6 months, with a non-parole period of 6 years — applicant’s youth and immaturity, genuine remorse and gathering insight were not reflected in sentence — applicant re-sentenced to a term of imprisonment of 6 years, 9 months with a non-parole period of 4 years and a balance of term of 2 years, 9 months.

CA v R [2019] NSWCCA 93

Severity appeal — applicant sentenced to imprisonment for 3 years, 9 months with non-parole period of 2 years for specially aggravated break and enter and committing a serious indictable offence — 78-year-old woman severely beaten with bricks and a piece of wood — applicant aged 12 years 10 months — sentence manifestly excessive — judge gave insufficient weight to applicant’s youth, immaturity, impulsivity and deprived background — appeal granted — applicant re-sentenced to a term of imprisonment for a non-parole period of 1 year, 4 months with a balance of term of 1 year, 8 months.

Best v R [2019] VSCA 124

Applicant sentenced to 5 years, 3 months and 21 days’ imprisonment with a non-parole period of 3 years for 3 charges of sexual penetration of a child under the age of 16 years — application for leave to appeal against sentence granted — early guilty plea, young offender, remorse, low risk of recidivism, family support — need for protective custody in adult gaol — applicant re-sentenced to 2 years, 10 months and 21 days’ imprisonment with a non-parole period of 1 year and 9 months.

Clarke-Jeffries v R [2019] NSWCCA 56

Severity appeal — 18-year-old applicant sent messages to 15-year-old victim to procure sexual activity — applicant sought money from the victim in exchange for destroying photographs she had sent to him — applicant sentenced to 4 years, 4 months imprisonment with non-parole of 2 years for using a carriage service to solicit child pornography material and procuring a person under 16 years to engage in sexual activity contrary to s 474.26 Criminal Code (Cth) — serious mental health issues at time of offending — sentence manifestly excessive — applicant re-sentenced to 2 years with non-parole period of 9 months.

DM v R [2018] NSWCCA 305

Severity — sexual offences — at first instance applicant sentenced to 5 years with non-parole period of 2 years 9 months, co-offender received a lesser sentence due to age and positive background report — sentencing judge erred in finding the applicant was a leader in relation to the offending conduct — applicant had a justifiable sense of grievance when comparing his sentence to that of his co-accused — Leave to appeal granted — sentence imposed at first instance quashed — offender re-sentenced to imprisonment for 4 years 6 months with non-parole period of 2 years 5 months.

Campbell v R [2018] NSWCCA 87

Sentencing appeal — 13 year-old pleaded guilty to serious sexual offences on younger relatives — sentence of imprisonment imposed — strong evidence of rehabilitation — interference with education of applicant — primary judge erred in deciding no alternatives to full-time custodial sentence were appropriate — applicant’s rehabilitation should be primary focus of proceedings — matter remitted to District Court for re-sentencing.

LD v R [2016] NSWCCA 217

Sentencing appeal — youth under 18 years of age at the time of the offence — aggravated break, enter and commit serious indictable offence — reckless wounding, in circumstances of aggravation — being in company — sentence of imprisonment for three years with a non-parole period of 1 year and 6 months imposed by sentencing judge — conceded failure of sentencing judge to apply provisions of the Children (Criminal Proceedings) Act 1987 — matter remitted.

Parity principle

Apulu v R [2022] NSWCCA 244

Applicant sentenced for 3 years and 6 months imprisonment with a non-parole period of 2 years for robbery whilst armed with an offensive weapon — applicant 19 years old, co-offender 17 years old — the co-offender was sentenced in the Children’s Court so the parity principle cannot be considered — no error in the approach of the sentencing judge to the operation of the principle of parity — a person sentenced for two armed robberies should ordinarily expect to receive a full-time custodial sentence — failure to demonstrate aggregate sentence was manifestly excessive.

JE v R [2019] NSWCCA 225

Severity appeal — applicant and co-offender found guilty of two offences of aggravated sexual assault in company, one count of aggravated indecent assault, one count of producing child abuse material — applicant sentenced to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years — co-offender sentenced to an aggregate term of imprisonment of 4 years and 3 months with a non-parole period of two years — applicant aged 15 years and 4 months and co-offender aged 14 years and 7 months at time of offending — co-offender played a greater role in offending, the incidents occurred in his house, he engaged in two separate instances of sexual intercourse, he provided alcohol and made recording — offending by co-offender more serious than that of applicant — disparity error has occurred in relation to aggregate sentence — aggregate sentence of 3 years with a non-parole period of 1 year and 6 months.

R v Flanagan [2019] NSWDC 306

Flanagan was 18 years and 10 months at time of offending — Brennan was 17 years and 10 months — aggravated break and enter — aggravated take and drive vehicle — knife used on one victim — both offenders on parole at time of offending — offenders’ youth, immaturity, deprived background, long history of offending, drug use, intellectual disability taken into account on sentencing — parity of sentence as equally liable for offences — Flanagan’s two sentences to be served concurrently — aggregate sentence 3 years and 9 months, non-parole period of 1 year and 11 months — Brennan’s sentence of 3 years and 4 months, non-parole period 1 year 8 months

R v BJ [2018] NSWDC 122

Aggravated sexual intercourse child between 14–16 — co-offenders pleaded guilty — offenders were children at the time of the offence — BJ was 14 years old at time of offence — mitigating factors of youth, immaturity of decision-making, influence of older co-offenders, deprived background taken into account — sentenced to 4 years with non-parole period of 2 years — co-offenders, HA and DM, 17 years old at time of offending — HA sentenced to 4 years 8 months with non-parole period of 2 years 4 months — DM sentenced to 5 years with non-parole period of 2 years and 9 months.

Siddiqi v R (Cth) [2015] NSWCCA 169

Sentencing appeal — error in having regard to non-conviction criminal record — Parity principle — whether erroneous sentences imposed upon co-offenders give rise to a justified sense of grievance — whether intervention of appellate court is justified — question of proper reflection of objective.

Aggregate sentence

R v RM [2015] NSWCCA 4

Child sex offences — respondent was juvenile when offences were committed — pleaded guilty to seven charges — sentenced to a five year good behaviour bond and a suspended aggregate sentence of 2 years imprisonment — whether error in identifying qualified discount for remorse — whether error in imposing a suspended aggregate sentence — whether error in imposing a single bond for five offences — whether indicated sentences reveal error in aggregate sentence — whether aggregate sentence manifestly inadequate — whether indicating non-parole periods for indicated sentences was in error — whether individual bonds were manifestly inadequate — whether overall sentence was manifestly inadequate — the court, exercising its residual discretion, declined to intervene to do other than correct the technical errors made by the sentencing judge.

PD v R [2012] NSWCCA 242

Aggregate sentence for multiple offences including a serious home invasion — applicant aged 16 years at the time of the offence in the company of his brother who was then aged 21 — appeal — whether sentencing judge failed to consider statutory principles relevant to sentencing juveniles — Pt 3 Div 4 Children (Criminal Proceedings) Act 1987 — whether sentence manifestly excessive — aggravated break and enter — motor vehicle stolen — reckless wounding of a police officer — commission of one serious children’s indictable offence and three other offences — whether erroneous for all four offences to be dealt with “according to law” — no prior convictions — intellectual impairment — s 53A Crimes (Sentencing Procedure) Act 1999.

Non-parole period error

Singh v R (2020) 104 NSWLR 43

Fraud — applicant 23–26 years old when offences committed — offences involved premeditation, sophistication and major breach of trust — Crimes (Sentencing Procedure) Act 1999, s 44 — special circumstances — observations concerning relationship between s 44 and aggregate sentences — judge properly took into account applicant’s youth when sentencing.

TF v R [2020] NSWCCA 248

Severity appeal — applicant sentenced to aggregate sentence of 10 years imprisonment with a non-parole period of five years for five offences of robbery and aggravated taking of a motor vehicle with a person in it — disproportion between overall sentence and non-parole period — assumption offender released on completion of non-parole period — balance of term excessive — applicant re-sentenced to an aggregate sentence of imprisonment for seven years and six months, with a non-parole period of five years.

DL v The Queen (2018) 265 CLR 215

Appeal DL v R (No 2) [2017] NSWCCA 58 — murder — powers of appellate court when re-exercising sentencing discretion — Court of Criminal Appeal substituted primary judge’s findings (intention to inflict grievous bodily harm) with aggravated finding (intention to kill) — error to depart from primary judge’s findings without giving notice to parties — procedural unfairness occasioned — factual findings of primary judge not challenged by either party on appeal.

DL v R (No 2) [2017] NSWCCA 58

Sentencing appeal — murder — offender aged 16 and murder victim aged 15 — sentencing judge remarked that “against the statutory provision of a non-parole period of 25 years, I do not feel able to reduce the non-parole period below 17 years and see no point in a further term exceeding 5 years” — Muldrock error — Muldrock v The Queen (2011) 244 CLR 120 — the High Court in Muldrock clarified that the standard non-parole period is but one guidepost and is not to be used as a starting point in the sentencing process — appeal dismissed (by majority) — see appeal, DL v The Queen (2018) 265 CLR 215, below.

Full-time imprisonment

R v Taumalolo [2022] NSWSC 1696

Sentencing for manslaughter and affray — victim killed at a birthday party after being attacked by a number of young men — one of the persons charged, Tafuna Taumalolo, pleaded guilty to murder and was sentenced to imprisonment for 18 years and 10 months with a non-parole period of 14 years and 1 month — ST pleaded guilty to manslaughter, and other offenders pleaded guilty to affray — objective seriousness of affray is above mid-range, objective seriousness of manslaughter is serious — ST was 17 years and one month at time of offence — sentenced to 6 years and 9 months’ imprisonment, with a non-parole period of imprisonment for 4 years and 1 month — special circumstances justify ST serving the remainder of his sentence after turning 21 as a juvenile offender — Suliasi Taumalolo was aged 20 years at the time of the offence — sentenced to 3 years and 9 months with a non-parole period of 2 years and 3 months — ET was 17 time of the offence — sentenced to 3 years and 4 months with non-parole period of 2 years — Mateaki Taumalolo was aged 18 years and 9 months at the time of the offending — sentenced to 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 4 months — Mayol aged 22 at time of offending — sentenced to 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 4 months.

IM v R [2019] NSWCCA 107

Severity appeal — Criminal Appeal Act 1912 (NSW), s 5(1)(c) — offender 14 years, 2 months old at time of offending — sentenced to imprisonment for 13 years, 6 months for terrorist offence — appeal that guilty plea not given appropriate weight — due to significance given to punishment, general deterrence and protection of community in cases involving terrorist offences, mitigating factors such as youth and rehabilitation given less weight — a discount of 10% should be allowed for the late plea of guilty — re-sentenced to a term of imprisonment of 10 years, 9 months with a non-parole period of 8 years.

R v AH [2018] NSWSC 973

Guilty plea to doing an act in preparation for, or planning, a terrorist act, pursuant to s 101.6(1) Criminal Code (Cth) — offence is objectively serious and a substantial term of full-time imprisonment is appropriate — offence above the low end of the range of objective gravity — 12 years imprisonment with non-parole period of 9 years — detention as a juvenile offender up to the age of 21.

R v Alou (No 4) [2018] NSWSC 221

Aiding, abetting, counselling or procuring the commission of a terrorist act — 18 year-old offender supplied firearm to 15-year old killer — supporter of Islamic State — remains radicalised — lack of contrition — weak prospect of rehabilitation — sentenced to a term of imprisonment of 44 years with non-parole period of 33 years.

Community Service Order/Community Correction Order

R v AR [2022] NSWCCA 5

Appeal of variation of sentence — Respondent pleaded guilty to aggravated take and detain — Community Correction Order of 18 months — sentencing judge later reopened proceedings and ordered no conviction to be recorded under s 14(1) Children (Criminal Proceedings) Act 1987 — serious children’s indictable offence to be dealt according to law — a conviction can be recorded under s 14(2) in respect of a child who is charged with an indictable offence that is not disposed of summarily — Community Correction Order may only be imposed upon a person who has been convicted — sentencing judge made no error of law when he did not exercise a discretion concerning the entry of a conviction at the time of making a Community Correction Order — vacate the order that no conviction be recorded in respect of aggravated take and detain for advantage and confirm initial order.

RC v DPP [2016] NSWSC 665

Sentencing appeal — youth identifies as Aboriginal — intellectual and emotional deficits — Attention Deficit Hyperactivity Disorder — multiple property offences — break, enter and steal — break and enter with intent — aggravated break, enter and steal — some offences committed while on parole and another while on conditional liberty — disconnection from Juvenile Justice — need for supervision identified — two-year control order reduced to 1 year and 10 months — non-parole period of 14 months reduced to 12 months — two-year good behaviour bond ordered — condition of bond that the youth accept the supervision of Juvenile Justice and the supervision of any other organisation or person directed by Juvenile Justice.

Multiple offences, partly occurred when young offender

R v MW [2019] NSWDC 307

Sentencing — offender pleaded guilty to three separate sexual offences against children — Count 1 and Form 1 offences occurred when offender aged 15 years — Count 2 offence occurred when offender 26 years of age — offender has mild intellectual disability, ADHD, sexually abused by uncle when younger — criminality in count 1 is above mid-range due to young age of victim — offender is entitled to substantial mitigation for count 1 and Form 1 matters as they would have been dealt with in Children’s Court had they been reported closer to time of offending — unable to conclude that count 1 matter crosses the threshold of s 5 Crimes (Sentencing Procedure) Act 1999 — Community Corrections Order for 3 years for count 1 — 3 years, 6 months with a non-parole period of 1 year. 9 months for count 2.

[9-1360] Youth parole

Last reviewed: Oct 2023

Secretary of the Department of Communities and Justice v Minster [2020] NSWChC 10

Young person sentenced to 12-month control order for offences of larceny and break and enter in company, eligible for parole after 6 months — committed a fresh offence of larceny prior to parole — Children’s Court in its parole jurisdiction revoked the parole order — young person committed another offence and was fined — Children’s Court has implied power in its parole jurisdiction to rescind an order for revocation of parole when necessary for the purposes of avoiding extending a detention order by the number of days the person was at large after the order took effect — avoids injustice to young person, satisfies objects of Children (Detention Centres) Act 1987, and furthers the objects of all relevant legislation in the Children’s Court and principles that apply in terms of prioritising rehabilitation of children — previous order for revocation rescinded and original order of parole continues.

Secretary of the Department of Communities and Justice v Rivers [2020] NSWChC 9

Children’s Court Parole jurisdiction — defendant pleaded guilty to reckless wounding in company — sentenced to detention for 12 months and non parole period and period of parole — released and committed further offences on parole — Secretary requested court confirm revocation of parole or make a fresh revocation — original revocation of parole not confirmed — order rescinding the original revocation of parole order pursuant to the implied power of Children’s Court — no need for fresh revocation of parole because young person has been further sentenced for affray and will be under a control order for another two months and under conditions of parole for a further six months — reinstatement of the original order for parole which has expired — following obiter dicta binding on all future parole proceedings in Children’s Court — calculation of the period referred to in s 68(3) Children (Detention Centres) Act 1987 which provides that if young offender is not taken into custody until after the day on which the order revoking the parole order takes effect, the term of the offender’s detention order is extended by the number of days the person was at large after the order took effect (“Street Time”) — proper method of calculating the extension of a detention order where there has been a breach of parole and the young person has been at large — the calculation of street time under s 68(3) is to be made having reference to time at large and time in custody not referable to the original offences for which the parole order in question was made — Palizio v NSW Parole Authority [2013] NSWSC 1829 followed.

Robb v R [2019] NSWCCA 113

Appeal against commencement of sentence — applicant sentenced to four years with a non-parole period of two years — towards the end of the non-parole period the applicant committed a further offence while on day release — erroneous understanding that applicant had been released on parole and was subject to parole conditions — sentence held to commence consecutively after first sentence of four years expired — applicant was refused bail and remained in custody — commencement of sentence for third offence to commence after non-parole period of two years.

[9-1380] Youth Koori Court

Last reviewed: Oct 2023

R v Thomas [2023] NSWChC 3

Thomas is Wiradjuri and Kamilaroi — suffers from attention deficit hyperactivity disorder, oppositional defiant disorder, post-traumatic stress disorder and mild intellectual disability — removed from parents when 1 and lived in multiple short-term family and refuge placements — removed from culture — guilty of threatening others with knife, arson on train — participated in YKC and no further offending — secured job and home — graduation from Youth Koori Court — matter dismissed with a caution under s 33(1)(a)(i).

R v Linda [2022] NSWChC 3

YKC graduation — 13 or 14 years at time of offending — 1 count affray, 5 counts assault occasioning bodily harm and assault — young person part of juvenile criminal network — 26 prior charges — young person complied with Action and Support Plan — no matters of violence for over 12 months — causal connection between mental health and commission of offences reducing moral culpability: Muldrock v The Queen (2011) 244 CLR 120 — charges dismissed under s 33(1)(a) Children (Criminal Proceedings) Act 1987.

R v Nerri [2022] NSWChC 2

Child 13 years old at time of offending — extensive criminal history with over 40 charges — 21 prior admissions into youth detention — child is Kamilaroi and Yuin — admitted to YKC — Action and Support Plan developed to reduce personal risk factors related to re-offending — child has not offended for 3 years — plan complied with and exceeded — prior offences dismissed under s 33(1)(a) Children (Criminal Proceedings) Act 1987.

R v ST [2018] NSWDC 22

Appropriate forum for sentencing — Children’s Court best placed to administer the requirements of the Children (Criminal Proceedings) Act 1987 and rehabilitation outcomes, and can to refer to the Youth Koori Court (YKC) — remittance to Children’s Court under s 20 Children (Criminal Proceedings) Act for purpose of imposing penalties — recommend referring defendant to YKC.

Honeysett v R (2018) 56 VR 375

Appellant pleaded guilty to one charge of armed robbery and one charge of theft — sentenced to 5 years imprisonment with non-parole period of 3 years — insufficient weight given to appellant’s youth, deprived background and Aboriginality — insufficient weight given to the appellant’s engagement with the Koori Court process — history of re-offending and previously used Koori Court to mitigate sentence — Koori Court has power to inform itself, but no obligation to request “Gladue” reports — appeal dismissed.