Criminal matters — important cases

[8-0000] Children’s Law News

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[8-0090] Decisions concerning young offenders

[8-0110] BP and SW v R [2006] NSWCCA 172

Children — criminal — young offenders — directions — 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.

[8-0120] R v Phung and Huynh (2001) NSWSC 115

Children — criminal — 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 — whether the accused was adversely affected by drugs or the effects of withdrawal at the time of the first interview — whether the accused was adversely affected by tiredness to the point where the reliability of any admission made was in question — 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.

[8-0130] R v Cortez (unrep, 3/10/2002, NSWSC)

Children — criminal — 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.

[8-0140] Director of Public Prosecutions (NSW) v CAD [2003] NSWSC 196

Children — criminal — 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.

[8-0150] R v KT [2007] NSWSC 83

Children — criminal — offender aged 16 although 17 years — 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 — whether offence committed in company — whether offence part of a planned or organised criminal activity — whether offender not fully aware of the consequences of his actions because of his age or any disability — whether discount allowed by reference to the offender’s plea of guilty — existence of special circumstances — 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) 182 A Crim R 571 for application for leave to appeal against sentence at [8-0510].

[8-0160] Police v BS [2011] CLN4

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

[8-0170] JIW v Director of Public Prosecutions (NSW) [2005] NSWSC 760

Children — criminal — young offenders — ss 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.

[8-0180] Poidevin v Semaan [2013] NSWCA 334

Criminal — 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 Law Enforcement (Powers and Responsibilities) Act 2002.

[8-0190] RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520

Children — criminal — 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 [8-0210].

[8-0200] R v FE [2013] NSWSC 1692

Children — criminal — 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.

[8-0210] RH v Director of Public Prosecutions (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 [8-0190].

[8-0220] TS v Constable Courtney James [2014] NSWSC 984

Children — criminal — young offenders — 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 the application for a buccal swab — Evidence Act must be read together with Crimes (Forensic Procedures) Act 2000 (NSW) along with any other applicable Act — meaning of reasonable grounds for forming a suspicion or belief.

[8-0230] The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251

Children — criminal — procedure — 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 Children and Young Persons (Care and Protection) Act 1998 (NSW) — 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.

[8-0235] R v GW [2015] NSWDC 52

Children — criminal — young offender — appeal — 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.

[8-0240] RP v R (2015) 90 NSWLR 234

Children — criminal — 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 [8-0595] and [8-0241].

[8-0241] RP v The Queen (2016) 259 CLR 641

Children — criminal — young offender — appeal — criminal liability and capacity — doli incapax — where appellant convicted to two counts of sexual intercourse with a child under 10 — the appellant’s brother is the complainant — where appellant was 11 years and six months at time of the offending — appellant found to be of very low intelligence — whether presumption of doli incapax rebutted — knowledge of the moral wrongness of the act present — use of condom during offence significant.

[8-0245] The Queen v GW (2016) 258 CLR 108

Children — criminal — 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.

[8-0250] JW v District Court of NSW [2016] NSWCA 22

Children — criminal — young offender — 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 (NSW) — 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.

[8-0255] R v NK [2016] NSWSC 498

Children — criminal — young offender — 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.

[8-0260] JB v R (No 2) [2016] NSWCCA 67

Children — criminal — 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.

[8-0265] Director of Public Prosecutions (NSW) v NW [2015] NSWChC 3

Children — criminal — 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.

[8-0270] JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669

Children — criminal — 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.

[8-0275] Police v JC [2016] NSWChC 1

Children — criminal — young offender — 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.

[8-0280] AB v R (Cth) [2016] NSWCCA 191

Children — criminal — young offender — 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.

[8-0285] Director of Public Prosecutions v Martin (a pseudonym) [2016] VSCA 219

Children — criminal — 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.

[8-0290] LCM v State of WA [2016] WASCA 164

Children — criminal — young offender — 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.

[8-0295] AL v R (2017) 266 A Crim R 1

Children — criminal — 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) 91 ALJR 248 considered (see [8-0241]) — whether verdict unreasonable or cannot be supported by evidence — open to jury to find guilt beyond reasonable doubt — appeal dismissed.

[8-0300] DL v R [2017] NSWCCA 57

Children — criminal — young offender — 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.

[8-0305] Tikomaimaleya v R (2017) 95 NSWLR 315

Children — criminal — 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.

[8-0310] R v SG [2017] NSWCCA 202

Children — criminal — 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.

[8-0315] Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760

Children — criminal — 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.

[8-0320] Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206

Children — care and protection — appeal — parens patriae jurisdiction — 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 Children and Young Persons (Care and Protection) Act — primary judge’s construction not arguably wrong — exercise of discretion in refusing to grant injunction arguably miscarried — leave to appeal refused.

[8-0325] NU v NSW Secretary of Family and Community Services [2017] NSWCA 221

Children — care and protection — Children and Young Persons (Care and Protection) Act 1998 — allegation that father sexually abused daughter — appropriate test to be applied in cases of custody/ access to child — inability to make positive finding of abuse not ultimate determinative of unacceptable risk of harm — Browne v Dunn rule did not apply — no error of law demonstrated — summons dismissed.

[8-0330] Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50

Children — criminal — 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.

[8-0335] AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46

Children — criminal — appeal — suppression and non-publication orders — 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).

[8-0340] DS v R [2018] NSWCCA 195

Children — criminal — appeal — 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.

[8-0345] Johnson v The Queen (2018) 92 ALJR 1018

Children — criminal — appeal — “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.

[8-0350] R v RI [2019] NSWDC 129

Sexual assault offences — Juvenile offender dealt with on indictment — offender was 17 years, 11 months and 28 days of age at the time of the 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.

[8-0355] R v Mercury [2019] NSWSC 81

Evidence — proceedings — 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”.

[8-0490] Decisions concerning sentencing

[8-0510] KT v R (2008) 182 A Crim R 571

Children — criminal — sentencing — 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 [8-0150]).

[8-0520] BP v R (2010) 201 A Crim R 379

Children — criminal — sentencing — 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.

[8-0530] R v SDM (1997) 127 A Crim R 318

Children — criminal — sentencing — appeal — number of offences including 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.

Children — criminal — sentencing — 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.

[8-0550] YS v R [2010] NSWCCA 98

Children — criminal — sentencing — appeal — 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.

[8-0560] PD v R [2012] NSWCCA 242

Children — criminal — sentencing — 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.

[8-0570] HJ v R [2014] NSWCCA 21

Children — criminal — 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 that the 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.

[8-0575] R v RM [2015] NSWCCA 4

Children — criminal — sentencing — appeal — 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.

[8-0580] Johan v R [2015] NSWCCA 58

Children — criminal — 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.

[8-0585] RL v R [2015] NSWCCA 106

Children — criminal — 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) 88 ALJR 947 applied — s 6(3) Criminal Appeal Act 1912.

[8-0590] Siddiqi v R (Commonwealth) [2015] NSWCCA 169

Children — criminal — 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.

[8-0595] RP v R (2015) 90 NSWLR 234

Children — criminal — 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 [8-0240].

[8-0600] TC v R [2016] NSWCCA 3

Children — criminal — sentencing — 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.

[8-0605] Kiernan v R [2016] NSWCCA 12

Children — criminal — sentencing — 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.

[8-0610] Ingrey v R [2016] NSWCCA 31

Children — criminal — Aboriginal offender — sentencing — 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: [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.

[8-0615] RC v Director of Public Prosecutions [2016] NSWSC 665

Children — criminal — 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.

[8-0620] LD v R [2016] NSWCCA 217

Children — criminal — 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 3 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.

[8-0625] BH v R [2016] NSWCCA 290

Children — criminal — 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.

[8-0630] OK v R [2016] NSWCCA 318

Children — criminal — 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.

[8-0635] DS v R [2017] NSWCCA 37

Children — criminal — 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.

[8-0640] DL v R (No 2) [2017] NSWCCA 58

Children — criminal — 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).

[8-0645] Ohanian v R [2017] NSWCCA 268

Children — criminal — 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.

[8-0650] DJ v R [2017] NSWCCA 319

Children — criminal — 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.

[8-0655] R v ST [2018] NSWDC 22

Children — criminal — sentencing — 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 — remittance to Children’s Court under s 20 Children (Criminal Proceedings) Act for purpose of imposing penalties — recommend referring defendant to Youth Koori Court.

[8-0660] Campbell v R [2018] NSWCCA 87

Children — criminal — 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.

[8-0665] [8-0665] R v AH [2018] NSWSC 973

Children — criminal — sentencing — 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.

[8-0670] Director of Public Prosecutions v Hutchison [2018] VSCA 153

Children — criminal — sentencing — 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 3 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.

[8-0675] Honeysett v R [2018] VSCA 214

Children — criminal — sentencing — appeal — 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.

[8-0680] R v BJ [2018] NSWDC 122

Children — criminal — sentencing — 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.

[8-0685] R v Alou (No 4) [2018] NSWSC 221

Children — criminal — sentencing — 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.

[8-0690] DM v R [2018] NSWCCA 305

Sentencing — 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 resentenced to imprisonment for 4 years 6 months with non-parole period of 2 years 5 months.

[8-0695] Clarke-Jeffries v R [2019] NSWCCA 56

Criminal law— sentencing appeal — Criminal Code (Cth) s 474.26 — 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 — at first instance 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 procure a person under 16 years to engage in sexual activity contrary to s 474.26 — serious mental health issues prevailing at the time of the offending — sentence manifestly excessive — applicant re-sentenced to an effective sentence of 2 years to be released after 9 months.

[8-0700] CA v R [2019] NSWCCA 93

Children — criminal — sentencing appeal — at first instance applicant sentenced to imprisonment for 3 years 9 months with non-parole period of 2 years for specially aggravated break and enter and commit 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 and applicant re-sentenced to a term of imprisonment for a non-parole period of 1 year 4 months.