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Supreme Court 13 March 2015

R v AN (No 2)

[2015] NSWSC 308

Homicide
CRIMINAL LAW SENTENCING MANSLAUGHTER JUVENILE OFFENDER ORDER MADE THAT OFFENDER SERVE HIS NON

Citation: R v AN (No 2) [2015] NSWSC 308
Court: Supreme Court of New South Wales
Date: 13 March 2015
Judge(s): Hall J

Background

The offender, a juvenile, had been sentenced for manslaughter in earlier proceedings (R v AN [2014] NSWSC 1879). At the time of delivering those sentencing remarks in December 2014, Hall J reserved the question of whether an order should be made under s 19 of the Children (Criminal Proceedings) Act 1987, which would allow the offender to serve his non-parole period in a juvenile detention centre rather than an adult correctional facility.

The matter returned to court on 13 March 2015 to determine that reserved question. By that time, Juvenile Justice NSW had produced a detailed report (Exhibit F) dated 16 February 2015, prepared following three interviews with the offender conducted in January and February 2015.

Both the offender's counsel and the Crown took the position that the report provided a sufficient evidentiary basis for the order to be made.

  • Whether "special circumstances" existed within the meaning of s 19(4)(b) and/or (c) of the Children (Criminal Proceedings) Act 1987 to justify ordering that the offender remain detained in a juvenile detention centre
  • Whether the evidence before the court was sufficient to support such a finding, in circumstances where the Juvenile Justice report did not expressly address the availability of equivalent programmes in adult correctional institutions
  • Whether an order under s 19 was appropriate having regard to s 19(4A), which provides that a finding of special circumstances cannot be based on youth alone

Decision

Hall J found that the Juvenile Justice report provided strong evidentiary support for a finding of special circumstances. The offender had commenced full-time schooling at Girrakool, with arrangements in place for him to pursue Higher School Certificate studies and a Diploma of Engineering by distance education through a university. The court noted these facilities involved direct supervision and small pupil-to-teacher ratios, tailored specifically for juvenile offenders, and inferred they differed materially from what would be available in an adult prison.

The court also accepted that specific therapeutic programmes were available at the juvenile facility, designed to address the offender's rehabilitation needs and the particular risks of re-offending. Hall J characterised these as tailor-made programmes directed at juvenile offenders, distinguishable from ordinary educational or vocational training.

On the question raised by s 19(4A), the court was satisfied the finding of special circumstances rested not on the offender's youth per se, but on his identified special educational and therapeutic needs. The court reasoned that unless those needs were met, the offender's capacity to gain insight and reintegrate into the community in the future may not improve.

Hall J concluded it was desirable in the interests of both the community and the offender to make the order, and that the evidence clearly supported doing so.

Orders Made

  • A finding of special circumstances was made under s 19 of the Children (Criminal Proceedings) Act 1987, based on the educational, vocational training, and therapeutic programmes available and suitable to the offender's needs at the juvenile detention centre.
  • Pursuant to s 19(1) and s 19(3) of the Act, an order was made directing that the offender serve his non-parole period as a juvenile offender until the day he turns 21, at which point he may be transferred to an adult prison.

Key Takeaways

  • Under s 19 of the Children (Criminal Proceedings) Act 1987, a court cannot order continued detention in a juvenile facility without a finding of special circumstances supported by evidence; youth alone is insufficient under s 19(4A).
  • A finding of special circumstances may be grounded in the availability of specialised educational, vocational, and therapeutic programmes at a juvenile facility that are not demonstrably available in adult correctional institutions.
  • Where a report does not expressly address the absence of equivalent programmes in adult institutions, the court may draw an inference to that effect from the specialised and tailored nature of the juvenile programmes described.
  • The Supreme Court treated the interests of the community and the interests of the offender as complementary considerations in determining whether an order under s 19 was appropriate.
  • An order under s 19 cannot extend beyond the offender's twenty-first birthday.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 19, 19(1), 19(3), 19(4), 19(4)(b), 19(4)(c), 19(4A)

Cases:
- R v AN [2014] NSWSC 1879 (the principal sentencing decision in these proceedings)