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Court of Criminal Appeal 21 November 2001

REGINA v RY

[2001] NSWCCA 499

Assault & violenceTheft & property
SENTENCE CHILD WHETHER MODE OF DEALING WITH CO OFFENDERS RELEVANT RELEVANT CONSIDERATIONS WHETHER PERMISSIBLE TO REQUIRE BOND

Citation: Regina v RY [2001] NSWCCA 499
Court: NSW Court of Criminal Appeal
Date: 21 November 2001
Judge(s): Barr J; Adams J

Background

The applicant, a girl aged thirteen and a half at the time of the offence, pleaded guilty to robbery with corporal violence following an attack on a pedestrian in the Parramatta Mall on 31 October 1999. She and two male co-offenders punched and kicked the victim repeatedly. The applicant took his mobile phone and left; the co-offenders continued the assault and one stabbed the victim with a knife, inflicting very serious injuries.

The applicant entered her guilty plea at the earliest opportunity. Psychological reports revealed she had borderline intellectual functioning, a conduct disorder, and depression. Her behaviour was described as erratic and her personality as prone to conflict between submissiveness and defiance.

Her co-offenders were dealt with separately. One, approximately seven months older than the applicant, received a fifteen-month suspended sentence. The other, aged just over eighteen, received three years' imprisonment with a non-parole period of around sixteen months. The District Court decided to deal with the applicant "according to law" rather than under the Children (Criminal Proceedings) Act 1987, and adjourned sentencing under section 11 of the Crimes (Sentencing Procedure) Act 1999, requiring her to enter a bond in the meantime. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing court was correct to determine that the applicant should be dealt with "according to law" rather than under the children's legislation, having regard to the gravity of the offence and her personal circumstances.
  • Whether the mode of dealing with co-offenders (parity) was a relevant consideration in that determination.
  • Whether a court exercising its power to defer sentencing under section 11 of the Crimes (Sentencing Procedure) Act 1999 has power to require an offender to enter into a bond.
  • What the appropriate sentence was for this applicant, having regard to her age, psychological profile, rehabilitation progress, and the need to avoid unnecessary detention.

Decision

The Court of Criminal Appeal granted leave to appeal and quashed the sentence imposed below. Adams J (with Barr J agreeing) accepted that the sentencing judge had been correct to decide that the gravity of the offence warranted dealing with the applicant according to law, and that this was a matter properly within the judge's discretion. The court did not disturb that underlying determination.

On the bond requirement, Adams J expressed the view, without finally deciding the point, that section 11 of the Crimes (Sentencing Procedure) Act 1999 does not confer power on a sentencing court to require an offender to enter into a bond when deferring sentence. The judgment noted that the relevant bond and good behaviour powers appear in sections 9 and 10 of the Act, and that conditions relating to rehabilitation during a deferral can be imposed by way of conditions under the Bail Act 1978. Because nothing in the appeal ultimately turned on this point, the court left the precise question open.

On the appropriate sentence, the court found that the applicant had, by the time of the appeal, been making genuine progress toward rehabilitation and was living in a stable environment with her sister. The court considered that the applicant did not need to be detained and that her rehabilitation could be promoted under supervision. A control order under the Children (Criminal Proceedings) Act 1987 for twelve months (commencing 11 May 2001) was substituted, with a short non-parole period structured to allow her immediate release to parole under Departmental supervision. The court noted the non-parole period was deliberately set at less than three-quarters of the control order's length, specifically to support the applicant's rehabilitation.

Orders Made

  • Leave to appeal granted.
  • Sentence quashed and replaced with a control order under section 33(1)(g) of the Children (Criminal Proceedings) Act 1987, committing the applicant to the control of the Minister administering the Children (Detention Centres) Act for one year, commencing 11 May 2001 and expiring 10 May 2002.
  • Non-parole period fixed to expire 22 November 2001, with the applicant directed to be released to parole on that date.
  • Parole conditions imposed, including:
  • Good behaviour
  • Acceptance of supervision and guidance of the Department of Juvenile Justice
  • Residence as directed by the Department
  • Attendance at counselling and group work as directed
  • Seeking employment or job training
  • No association with co-offenders or others not approved by the Department

Key Takeaways

  • The gravity of an offence is a legitimate and weighty consideration when a court determines whether a child offender should be dealt with "according to law" rather than under children's legislation, even where the offender is very young and has significant psychological vulnerabilities.
  • Parity with co-offenders is a relevant consideration in sentencing a child, but it does not automatically dictate the mode or outcome of sentencing, particularly where co-offenders differ in age and culpability.
  • Under section 11 of the Crimes (Sentencing Procedure) Act 1999, a court deferring sentence for an offender to demonstrate rehabilitation most likely does not have power to require entry into a bond. The Court of Criminal Appeal flagged this as a serious concern, though the point was left formally undecided because it did not affect the outcome of the appeal.
  • Conditions designed to support rehabilitation during a sentencing deferral can be attached as conditions of bail under the Bail Act 1978.
  • A non-parole period set at less than three-quarters of a control order's duration is permissible where the sentencing court expressly fixes it at that length to promote rehabilitation under supervised release.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 11
- Children (Criminal Proceedings) Act 1987 (NSW), s 33(1)(g)
- Children (Detention Centres) Act 1987 (NSW)
- Bail Act 1978 (NSW)

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