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Court of Criminal Appeal 24 November 2000

Regina v F.F.

[2000] NSWCCA 493

Assault & violence
SENTENCING SEVERITY APPEAL JUVENILE

Citation: Regina v F.F. [2000] NSWCCA 493
Court: NSW Court of Criminal Appeal
Date: 24 November 2000
Judge(s): Carruthers AJ; Barr J

Background

The applicant, a girl aged 14 at the time of the offence, was charged in connection with deliberately feeding her mother a sandwich laced with insecticide containing Diazinon, in an attempt to kill her. She made full admissions to police and stated she expected the poison to cause her mother's death. A second attempt to poison her mother using a different substance was also made on the same occasion, though that attempt did not succeed.

The applicant pleaded guilty in the District Court to the lesser charge of maliciously causing a poison to be taken so as to endanger life under s 39 of the Crimes Act 1900, carrying a maximum of ten years' imprisonment. Judge Freeman sentenced her to four and a half years' imprisonment with a non-parole period of twelve months, directing that the sentence be served in a detention centre.

Because the offence was not classified as a "serious children's indictable offence" under the Children (Criminal Proceedings) Act 1987, the sentencing judge had a discretion to deal with the matter either "according to law" or according to the more protective regime applicable to children. Judge Freeman elected to deal with the matter according to law. The applicant sought leave to appeal against that decision and the resulting sentence.

  • Whether the sentencing judge erred in exercising his discretion to deal with the applicant "according to law" under ss 16 and 18 of the Children (Criminal Proceedings) Act 1987, rather than under the children's sentencing regime
  • Whether the sentencing judge gave adequate consideration to the principles in s 6 of the Children (Criminal Proceedings) Act 1987 when exercising that discretion
  • Whether the resulting sentence was manifestly excessive

Decision

The Court of Criminal Appeal considered whether Judge Freeman had erred in choosing to sentence the applicant according to law rather than under the children's regime. Counsel for the applicant argued that the sentencing judge had failed to give sufficient regard to the principles in s 6 of the Children (Criminal Proceedings) Act 1987, which direct courts to consider matters such as the child's dependency, immaturity, and prospects of rehabilitation when exercising criminal jurisdiction over children.

The Court referred to R v WKR (1993) 32 NSWLR 447, where Sully J explained that the threshold discretion under s 18(1) of the Children (Criminal Proceedings) Act is to be exercised by reference to a fair and objective assessment of the offender's true level of culpability. Where an offence is, by its nature, an "adult crime" rather than one that can sensibly be attributed to a child's state of dependency and immaturity, that characterisation may properly support a decision to deal with the matter according to law.

The Court found no error in Judge Freeman's exercise of the discretion. His Honour had identified the seriousness of the offence and the aggravating relationship between offender and victim. Importantly, the sentencing remarks also demonstrated genuine concern for the applicant's rehabilitation, including directing that psychological reports accompany the warrant and recommending intensive psychological treatment during custody.

Carruthers AJ concluded that the sentencing judge had not erred in law, and that the Court of Criminal Appeal's intervention was not warranted. Barr J agreed. Leave to appeal was granted, but the appeal itself was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under ss 16 and 18 of the Children (Criminal Proceedings) Act 1987, a District Court judge retains a discretion to deal with a child offender "according to law" rather than under the children's sentencing regime, where the offence charged is not a "serious children's indictable offence."
  • The threshold for exercising that discretion turns on a fair and objective assessment of the offender's culpability, including whether the offence is more appropriately characterised as an "adult crime" rather than conduct arising from the child's dependency or immaturity (R v WKR).
  • No error of law was established simply because the sentencing judge's stated reasons did not explicitly recite the s 6 principles, provided those principles were consistent with the approach taken overall.
  • In dismissing the appeal, the Court noted that genuine attention to rehabilitation in the sentencing remarks supported the conclusion that the judge had not overlooked the child's circumstances.
  • The Court of Criminal Appeal's role in such applications is confined to identifying legal error; expressions of sympathy for the applicant's difficult background did not, of themselves, provide a basis for intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27, 39
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 16, 18, 19
- Children's (Detention Centres) Act (NSW)
- Sentencing Act 1989 (NSW)

Cases:
- R v WKR (1993) 32 NSWLR 447
- R v GDP (1991) 53 A Crim R 112
- Wilcox (CCA, unreported, 15 August 1979)
- Bellavia (CCA, unreported, 16 August 1980)
- Broad (CCA, unreported, 30 March 1984)
- C, S & T (CCA, unreported, 12 October 1989)
- R v Crombie [1999] NSWCCA 297
- Elomar [2000] NSWCCA 431
- House v The King (1936) 55 CLR 499