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Local Court 23 October 2009

Police V MW

[2009] NSWLC 15

Sexual offencesAssault & violence
CRIMINAL LAW PROCEDURE JUVENILE OBJECTIVE SERIOUSNESS OF OFFENDING PRINCIPLES APPLIED

Citation: Police v MW [2009] NSWLC 15
Court: Local Court of New South Wales (Children's Court jurisdiction), Young
Date: 23 October 2009
Judge(s): Magistrate Peter S. Dare SC

Background

MW was a 14-year-old male who appeared before the Young Children's Court after pleading guilty to two charges: sexual intercourse without consent and assault, both committed on 3 August 2009. The charges arose from an unprovoked attack on a woman walking her dog through a public park in Young, NSW.

The offender had followed the complainant for some distance before crash-tackling her to the ground. While she was pinned beneath his full body weight, he forced his fingers into her vagina through her clothing on multiple occasions. When bystanders intervened and the complainant attempted to restrain him, the offender punched her in the face before fleeing back to his nearby school.

The central procedural question before the court was whether the matter should be dealt with summarily in the Children's Court, or committed to the District Court for sentence under the elevated sentencing jurisdiction available for more serious cases.

  • Whether the charges, though not classified as "serious children's indictable offences," nonetheless warranted referral to the District Court under s 31(5) of the Children (Criminal Proceedings) Act 1987 on the basis that they could not properly be disposed of in a summary manner
  • Whether the objective seriousness of the offending and the appropriate penalty exceeded the Children's Court's maximum two-year control order jurisdiction
  • What principles govern the sentencing of juvenile offenders and whether those principles could be adequately applied within the Children's Court's sentencing constraints

Decision

Magistrate Dare identified the core tension: charges that are not "serious children's indictable offences" are ordinarily dealt with summarily in the Children's Court, where the maximum penalty is a two-year control order. However, s 31(5) of the Children (Criminal Proceedings) Act 1987 permits the court to decline summary disposal where, on all the evidence, the charge cannot properly be dealt with in that way.

The Magistrate found the offending to be objectively serious. The attack was not impulsive or purely opportunistic. The offender had watched and followed the complainant over some distance before assaulting her, indicating a degree of planning or premeditation. The complainant was a stranger, assaulted in a public space in broad daylight. The offender provided false accounts to police before ultimately admitting the offending.

Magistrate Dare concluded that a two-year detention period, however structured, would fail to reflect the gravity of the conduct and would fall well short of community expectations for offending of this kind. Critically, the Children's Court's sentencing architecture could not accommodate an appropriate non-parole period followed by a period of parole supervision, both of which the Magistrate regarded as necessary components of a proper sentence. On that basis, the matter was committed to the District Court for sentence.

The Magistrate directed that a Specialist Report from the Department of Juvenile Justice be prepared for the District Court, and attached the judgment to the court papers so that the sentencing judge would have the benefit of the Magistrate's reasoning.

Orders Made

  • MW committed for sentence to the District Court at its next sitting at Wagga Wagga on the charges of sexual intercourse without consent and assault
  • Bail formally refused
  • Department of Juvenile Justice directed to prepare a Specialist Report for the District Court
  • Copy of the judgment directed to be included with the court papers for the presiding District Court judge
  • Listing Authorities and the Office of the Director of Public Prosecutions requested to prioritise the offender's appearance at the next District Court sittings at Wagga Wagga

Key Takeaways

  • Under s 31(5) of the Children (Criminal Proceedings) Act 1987, a Children's Court may decline to deal summarily with an indictable offence to which a guilty plea has been entered where the court is of the opinion that the charge cannot properly be disposed of in a summary manner, even if the offence is not a "serious children's indictable offence."
  • The two-year maximum control order available in the Children's Court does not always provide sufficient sentencing flexibility, particularly where a proper sentence requires both a meaningful non-parole period and a period of supervised parole.
  • A degree of planning or premeditation, even in the context of juvenile offending, is a relevant factor in assessing whether the objective seriousness of the conduct exceeds the summary jurisdiction.
  • Committing a matter to the District Court does not remove the requirement to apply principles applicable to the sentencing of juvenile offenders; those principles continue to govern the sentencing exercise in the higher court.
  • The sentencing disparity between the Children's Court regime (maximum two-year control order) and the "according to law" regime (maximum 14 years imprisonment under s 61I of the Crimes Act 1900) is significant, and s 31(5) exists to ensure that the most serious cases are directed to the court with jurisdiction to impose an adequate penalty.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 18, 19, 31(5), 33(1)(g)
- Crimes Act 1900 (NSW), ss 61, 61I
- Criminal Procedure Act 1986 (NSW)

Cases
- JIW v Director of Public Prosecutions (NSW) [2005] NSWSC 760
- MSS v The Queen (2005) 158 A Crim R 93
- R v Adamson (2002) 132 A Crim R 511
- Regina v AEM Snr, KEM and MM [2002] NSWCCA 58
- R v Bus (Unrep, NSWCCA, 3 November 1995)
- R v E (a child) (1993) 66 A Crim R 14 (WACCA)
- R v GDP (1991) 53 A Crim R 112
- R v Gulliford (2004) 148 A Crim R 558
- R v Hearne (2001) 124 A Crim R 451
- R v Hibberd [2009] NSWCCA 20
- R v Hoang [2003] NSWCCA 380
- R v King [2009] NSWCCA 117
- R v KRG [2003] NSWSC 751
- R v KT [2008] NSWCCA (full citation not provided in judgment)
- R v LC [2001] NSWCCA 175
- R v Pham & Ly (1991) 55 A Crim R 128
- R v Tran [1999] NSWCCA 109
- R v TJP [1999] NSWCCA 408
- R v Voss [2003] NSWCCA 182
- R v Williscroft (1975) VR 292
- R v WRK (1993) 32 NSWLR 447
- TM v R [2008] NSWCCA 158