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District Court 2 April 2007

R v Justin Moroney

[2007] NSWDC 154

Other
CRIMINAL LAW SENTENCE S5A DRUG COURT ACT 1998 JUVENILE RECORD PROBATION WITHOUT CONVICTION

Citation: R v Justin Moroney [2007] NSWDC 154
Court: District Court of New South Wales
Date: 2 April 2007
Judge(s): Nicholson SC DCJ

Background

The offender was sentenced for robbery in company with corporal violence, committed on 30 March 2005 at Beacon Hill. The victim was a twenty-one-year-old university student who was robbed of cash after violence was used against him immediately before the robbery.

Prior to sentencing, the offender had been granted section 11 bail under the Crimes (Sentencing Procedure) Act 1999, which allowed him to remain in the community on conditions aimed at supporting rehabilitation. Those conditions included good behaviour, engagement with health, drug and alcohol professionals, and regular court appearances. His compliance was poor from the outset and deteriorated over time, ultimately resulting in revocation of bail.

At sentencing, the offender's legal representative submitted that the court should fix a sentence within the parameters that would permit a referral to the compulsory Drug Court rehabilitation program under the Drug Court Act 1998.

  • Whether the offender met the definition of "eligible convicted offender" under section 5A of the Drug Court Act 1998, specifically whether he had the requisite two prior convictions within the preceding five years
  • Whether a juvenile probation order made without a conviction recorded (under sections 14 and 15 of the Children (Criminal Proceedings) Act 1987) constitutes a "conviction" for the purposes of section 5A(1)(c)
  • Whether a serious mental health condition would separately preclude the offender from eligibility under section 5A(3)

Decision

The court's analysis focused first on whether the offender satisfied the prior conviction threshold in section 5A(1)(c), which requires at least two other convictions in the five years preceding sentencing. As an adult, the offender had limited recorded convictions: a section 9 bond for break and enter, and several minor offences (entering enclosed lands and shoplifting) dealt with by way of fines in early 2007. Those offences had occurred during the very bail period the court had granted.

The offender's juvenile record included a probation order made without a conviction being formally recorded. The question was whether such an order counted as a "conviction" for Drug Court eligibility purposes. The court held that it did not. Sections 14 and 15 of the Children (Criminal Proceedings) Act 1987 expressly provide that where a conviction is not recorded for a child offender, that matter cannot subsequently be relied upon in other proceedings, whether as character evidence or as a prior offence for sentencing. The court acknowledged that the Drug Court program is beneficial, and that eligibility provisions might ordinarily be read inclusively. However, giving the probation order the status of a "conviction" would contradict the clear legislative intent behind the children's legislation.

On the separate question of mental health, the court declined to exclude the offender on that basis. It was open, in the court's view, for the Drug Court itself to assess whether the offender's serious mental condition would prevent active participation in a drug treatment program. That determination was properly left to the Drug Court rather than resolved at the sentencing stage.

Having found the offender ineligible for the Drug Court program due to insufficient prior convictions, the court proceeded to impose a custodial sentence. In doing so, it took into account the mitigating circumstances identified at the original bail hearing, including the offender's lesser role, his traumatic brain injury, family support, and time already spent in custody.

Orders Made

  • Convicted of robbery in company with corporal violence on 30 March 2005 at Beacon Hill
  • Non-parole period of 15 months, commencing 1 February 2007 and expiring 30 April 2008
  • Balance of term of 9 months, expiring 30 January 2009
  • Order for release to Probation and Parole on 30 April 2008
  • Recommendation to the Parole Board that the offender be subject to close and intense supervision, with the original section 11 bail conditions considered as appropriate parole conditions

Key Takeaways

  • A probation order made without a recorded conviction under sections 14 and 15 of the Children (Criminal Proceedings) Act 1987 does not constitute a "conviction" for the purposes of the Drug Court eligibility criteria in section 5A(1)(c) of the Drug Court Act 1998.
  • Under section 5A(1)(c), a person seeking Drug Court referral must have at least two other convictions in the five years before sentencing. Minor adult offences resulting in fines may count, but juvenile outcomes where no conviction was recorded do not.
  • Although the Drug Court program is beneficial and eligibility provisions might otherwise be read broadly, that interpretive approach cannot override the clear statutory protections given to juvenile offenders by the Children (Criminal Proceedings) Act 1987.
  • The question of whether a serious mental health condition prevents active participation in a drug treatment program under section 5A(3) is a matter for the Drug Court to determine, not for the sentencing court to resolve pre-emptively.
  • Where section 11 bail is granted and the offender fails to comply, the sentencing court proceeds to impose a custodial sentence, though it retains the discretion to take into account time spent in rehabilitation programs when calculating backdating.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
- Drug Court Act 1998 (NSW), s 5A
- Children (Criminal Proceedings) Act 1987 (NSW), ss 14, 15
- Drug Misuse and Trafficking Act 1985 (NSW)
- Criminal Procedure Act (NSW)

Cases:
- Griffiths v The Queen (1977) 137 CLR 293