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Court of Criminal Appeal 9 June 2005

R v JJS

[2005] NSWCCA 225

Sexual offences

Citation: R v JJS [2005] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 9 June 2005
Judge(s): Studdert J (presiding), James J, Howie J

Background

The applicant, referred to as JJS, was fourteen years old when he committed an act of indecency against a three-year-old child in December 2002. He pleaded guilty in the District Court to the lesser charge of assault with act of indecency, and the Crown accepted that plea in full discharge of the indictment.

Rather than imposing a custodial sentence, the sentencing judge made an order under s 9 of the Crimes (Sentencing Procedure) Act 1999 directing JJS to enter into a five-year good behaviour bond. Among its conditions, the bond prohibited JJS from having any unsupervised contact with children under twelve years of age for the full five-year term.

JJS appealed to the Court of Criminal Appeal, challenging aspects of both the form of the proceedings and the terms of the bond, particularly its duration and the unsupervised contact condition.

  • Whether the matter should have been dealt with under the Children (Criminal Proceedings) Act rather than at law, given the applicant's age at the time of the offence
  • Whether the five-year duration of the good behaviour bond was excessive
  • Whether the condition prohibiting unsupervised contact with children under twelve years was appropriate in the circumstances

Decision

The Court of Criminal Appeal granted leave to appeal and found that the applicant had established grounds relating to the bond's duration and the unsupervised contact condition, though it did not find that the sentencing judge erred in dealing with the matter at law rather than under the Children (Criminal Proceedings) Act.

On the question of proceeding at law, the Court accepted that the gravity and nature of the offence objectively warranted that course. Despite the applicant's youth, troubled background, and evidence that he did not present with deviant sexual patterns, Studdert J was not persuaded that the judge's discretion had miscarried on this point.

The Court was persuaded, however, that the overall period of the bond should be reduced to three years from its commencement date of 3 August 2004. It also found that the unsupervised contact condition was not appropriate on the particular facts, having regard to the applicant's circumstances at the time of the appeal, including that he was living and working on a farm and residing in a cabin supplied by his employer for most of the fortnight.

The revised bond was ordered to expire on 2 August 2007, retaining all other conditions set by the District Court, but omitting the prohibition on unsupervised contact with children under twelve.

Orders Made

  • Leave to appeal granted
  • The existing bond quashed from the date of the appeal hearing (9 June 2005)
  • The applicant ordered to enter into a new bond within seven days, to take effect from the date of execution and expire on 2 August 2007
  • The new bond to retain all conditions set by the District Court, except for the condition prohibiting unsupervised contact with children under twelve years of age

Key Takeaways

  • A sentencing court retains discretion to deal with an offence committed by a juvenile at law rather than under the Children (Criminal Proceedings) Act where the objective gravity and nature of the offence warrants it, even where the offender has no prior record and has a disturbed background.
  • The Court of Criminal Appeal confirmed that conditions attached to a good behaviour bond must be proportionate to the circumstances of the individual offender, not simply derived from standard recommendations in pre-sentence reports.
  • Upholding only part of the appeal, the Court distinguished between the decision to proceed at law (which it did not disturb) and the specific terms of the bond (which it modified).
  • Changed personal circumstances between sentencing and appeal can be relevant to the appropriateness of particular bond conditions, as the Court considered affidavit evidence of the applicant's living and employment arrangements at the time of the hearing.
  • Under s 61M(2) of the Crimes Act, the maximum penalty for the relevant offence was ten years imprisonment; the imposition of a good behaviour bond rather than a custodial sentence reflected the applicant's youth and the totality of his circumstances.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act, s 18
- Crimes Act 1900 (NSW), s 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases:
- R v Bugmy [2004] NSWCCA 258