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Court of Criminal Appeal 4 April 2007

AEL v R

[2007] NSWCCA 97

Also reported as 170 A Crim R 355
Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: AEL v R [2007] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 4 April 2007
Judge(s): McClellan CJ at CL; Barr J; Hoeben J

Background

The applicant, a young male, pleaded guilty in the Children's Court in 2003 to one count of sexual intercourse with a child under 10 years (his brother, then aged 7 to 8), together with three indecent assault matters on a Form 1 involving his sister, then aged 5. The applicant was himself aged no more than 13 at the time of the offences.

At the original sentencing in August 2003, the sentencing judge imposed a three-year good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999, deferring sentence on the condition that the applicant complete a residential rehabilitation program at Mirvac House. The Department of Community Services subsequently withdrew funding before the applicant could complete that program, a circumstance the sentencing judge later found was not the applicant's fault.

Following his departure from Mirvac House, the applicant lived an unsettled existence across various temporary and often unsuitable accommodation. He breached the conditions of his bond on multiple occasions. In March 2006, when aged 16, he was sentenced in the District Court to a non-parole period of 18 months with a further term of 3 years and 6 months, making him eligible for parole in September 2007 with the sentence expiring in March 2011. He appealed that sentence to the Court of Criminal Appeal.

  • Whether the sentence imposed at the March 2006 hearing was manifestly excessive or otherwise in error, having regard to the applicant's age, psychological profile, and the circumstances of the bond breach.
  • Whether sufficient weight was given to the applicant's rehabilitation as the primary sentencing objective for a child offender.
  • Whether the failure to complete the original rehabilitation program, caused by the withdrawal of government funding rather than the applicant's conduct, was properly reflected in the resentencing.
  • What parole conditions and supervision arrangements were appropriate to support the applicant's rehabilitation on release.

Decision

McClellan CJ at CL, with whom Barr J and Hoeben J agreed, found that the sentence imposed by the District Court was excessive in the circumstances. The court noted that the applicant's inability to complete the Mirvac House program was attributable to the withdrawal of funding by the Department of Community Services and not to any failure on the applicant's part. That finding bore significantly on how the subsequent bond breaches should be characterised.

The court observed that the sentencing judge at the District Court may not have had sufficient evidence of the true nature of the applicant's psychological condition or of a workable plan for his ongoing rehabilitation. Evidence tendered on appeal from the Department of Juvenile Justice demonstrated that a place was available for the applicant in the Youth Off the Streets Program, providing accommodation, discipline, education, and care for 12 months at no cost, with a view to transitioning him to independent accommodation thereafter.

The Court of Criminal Appeal accepted that the applicant's period of incarceration had, on the available evidence, prompted some recognition of the need to address his behaviour. In those circumstances, the court determined that continued incarceration was no longer warranted. The parole period was set to expire on the applicant's 19th birthday, with conditions requiring him to reside in the Youth Off the Streets Program and to accept the supervision and directions of the Department of Juvenile Justice, including directions as to accommodation.

Orders Made

  • Leave to appeal granted and the appeal upheld.
  • The sentence imposed on 3 March 2006 quashed.
  • The applicant sentenced to a non-parole period commencing 3 March 2006 and expiring 4 April 2007, with a further term expiring 16 December 2008 (the applicant's 19th birthday).
  • The applicant directed to be released to parole as soon as arrangements could be made for his accommodation in the Youth Off the Streets Program.
  • Parole conditions imposed requiring the applicant to accept the direction and supervision of the Department of Juvenile Justice, including any direction as to accommodation, until the end of the parole period.

Key Takeaways

  • Where a child offender's failure to comply with rehabilitation conditions stems from a government funding withdrawal rather than the offender's own conduct, that distinction is a material consideration in any subsequent sentencing exercise.
  • Rehabilitation remains the primary sentencing objective when dealing with child offenders, and a period of incarceration, while sometimes unavoidable, does not displace the court's ongoing obligation to structure release conditions in a way that supports that goal.
  • The Court of Criminal Appeal confirmed that fresh evidence on appeal, including a concrete and funded rehabilitation placement not available to the sentencing court, can properly inform a resentencing and support a reduction in the effective custodial term.
  • Parole conditions for a young offender can be tailored specifically to require residence in a nominated program and compliance with departmental supervision, including directions as to accommodation throughout the parole period.
  • In cases involving child offenders with significant psychological and behavioural difficulties, the availability or unavailability of an effective rehabilitation plan at the time of sentencing may substantially affect the proportionality of the sentence ultimately imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61M(2)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 17, 18
- Children Criminal Proceedings Regulation 2000 No 433 (NSW) (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9; Division 3, Part 3

Cases:
- R v JDB (2005) 153 A Crim R 164; [2005] NSWCCA 102
- R v KLH (2004) 148 A Crim R 515; [2004] NSWCCA 312
- R v KBM [2004] NSWCCA 123