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Court of Criminal Appeal 3 October 2001

R v Best

[2001] NSWCCA 401

Also reported as 125 A Crim R 284
Assault & violence

Citation: R v Best [2001] NSWCCA 401
Court: NSW Court of Criminal Appeal
Date: 3 October 2001
Judge(s): Wood CJ at CL; Studdert J; Bell J

Background

The respondent pleaded guilty in the Bathurst District Court to two serious offences against his infant daughter: maliciously inflicting grievous bodily harm and assault occasioning actual bodily harm. The child, born in May 2000, sustained serious injuries as a result of multiple incidents of physical violence, including shaking, punching, and other abuse inflicted when she was only weeks old. Two additional offences were taken into account on a schedule.

At sentencing, Judge Goldring dealt with the respondent under Part 3 Division 4 of the Children (Criminal Proceedings) Act 1987, a regime designed for young offenders. The judge imposed suspended control orders rather than terms of imprisonment, appearing to be significantly influenced by the respondent's immaturity and the fact that the offences did not meet the statutory definition of "serious children's indictable offences."

The Director of Public Prosecutions appealed against the sentences on the ground that the sentencing judge had erred in applying the children's proceedings framework to offences of this gravity.

  • Whether the sentencing judge erred by dealing with the respondent under Part 3 Division 4 of the Children (Criminal Proceedings) Act 1987 rather than sentencing him according to the ordinary law.
  • Whether the gravity of the offences and the applicable criteria required the respondent to be sentenced according to law as an adult offender.
  • Whether the appeal should be heard in the respondent's absence, given he had been duly notified but did not appear.

Decision

The Court first addressed the respondent's non-appearance. The respondent had received multiple written notices of the appeal and its hearing date, had acknowledged receipt of documents, and had been warned the matter might proceed in his absence. His only communication was a telephone message claiming he lacked the means to travel from Bathurst and was seeking a medical certificate. The Court was satisfied he had due notice and that no adequate excuse existed for his absence, and it proceeded to hear the appeal.

On the substantive issue, the Court applied the criteria set out in the earlier authority R v WKR (1993) 32 NSWLR 447, which governs when it is appropriate to deal with an offender under the children's proceedings regime rather than according to ordinary law. The Court found the offences were plainly very serious, each involving significant violence to a very young infant.

Studdert J, delivering the reasons of the Court, held that the sentencing judge had manifestly failed to give sufficient weight to the gravity of the respondent's conduct. The decision to invoke Part 3 Division 4 was an error. The circumstances of the case compelled that the respondent be sentenced according to law.

Because the respondent was absent and unrepresented, the Court declined to re-sentence him itself. Instead, it remitted the matter to the District Court for sentencing by a different judge according to law.

Orders Made

  • The appeal was allowed.
  • The orders made against the respondent in the District Court were quashed.
  • The matter was remitted to the District Court for sentencing by a different judge according to law, at a time and place to be appointed by that court and advised to the respondent.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the decision to deal with a young offender under Part 3 Division 4 of the Children (Criminal Proceedings) Act 1987, rather than according to ordinary sentencing law, must be measured against the gravity of the offending, not merely the offender's age or immaturity.
  • Applying the criteria from R v WKR, offences involving repeated serious violence to a very young infant were held to be plainly incompatible with the lenient regime available under the children's proceedings framework.
  • A sentencing judge's perception of an offender's immaturity, without adequate regard to the seriousness of the conduct, does not justify invoking a specialised children's sentencing regime where the statutory criteria for doing so are not met.
  • Where a Crown appeal is remitted rather than decided by the appellate court, the matter must be heard by a different judge of the sentencing court, not the original sentencing judge.
  • Sufficient, repeated notice of an appeal hearing, acknowledged in writing by a respondent, may justify the Court of Criminal Appeal proceeding to determine the appeal in the respondent's absence.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), s 5B
- Crimes Act (NSW), ss 35(b), 59
- Crimes (Sentencing Procedure) Act (NSW), s 32
- Children (Criminal Proceedings) Act 1987 (NSW), Part 3 Division 4, ss 3, 33(1)(g)

Cases:
- R v WKR (1993) 32 NSWLR 447