Citation: YF v Regina [2016] NSWDC 175
Court: District Court of New South Wales
Date: 19 August 2016
Judge: Judge AC Scotting
Background
The applicant, a young person who had arrived in Australia on a student visa, was charged with a single count of dealing with cash exceeding $100,000 reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth). The conduct underlying the charge spanned two distinct periods: approximately $2.8 million was dealt with between July and August 2014 when the applicant was 17, and approximately $1.2 million was dealt with between September and December 2014 when he was 18.
The applicant pleaded guilty in the District Court in October 2015. He subsequently sought to have the matter remitted to the Children's Court under s 44 of the Children (Criminal Proceedings) Act 1987 (NSW) (the CCP Act), but that application was refused on the basis that the Children's Court lacked jurisdiction over conduct occurring after he had turned 18.
The applicant then filed a notice of motion in May 2016 seeking a permanent stay of the indictment. He argued that prosecuting him on a single count covering both periods of offending denied him the protections the CCP Act would otherwise have afforded him as a young person.
Legal Issues
- Whether the indictment, which covered conduct both before and after the applicant turned 18, constituted an abuse of process by depriving him of the protections available under the CCP Act.
- Whether the continuation of proceedings on those terms involved unacceptable injustice or unfairness sufficient to warrant a permanent stay.
- Whether the time for filing the notice of motion should be extended, given it was filed outside the three-month limit prescribed by cl 8 of the Criminal Procedure Regulation 2010.
Decision
Judge Scotting accepted that the prosecution's decision to frame a single count incorporating conduct from both before and after the applicant's 18th birthday gave rise to potential unfairness. The CCP Act provides significant protections to young offenders, including closed proceedings, restrictions on publication of names, and sentencing principles specifically designed to promote rehabilitation. By charging a single count that crossed the age threshold, the prosecution had effectively removed the applicant's ability to have the Children's Court component of his offending dealt with in that jurisdiction.
Despite acknowledging that unfairness, the Court found it did not go to the root of the proceedings in a way that could not be remedied. The District Court retains the power to take into account the applicant's youth, the principles in s 6 of the CCP Act, and the sentencing approach confirmed in R v GDP (1991) 53 A Crim R 112 when passing sentence. Those measures were sufficient to alleviate the unfairness without requiring a stay.
Several additional factors weighed against granting the stay. The applicant had already pleaded guilty to the indictment as framed. A stay might expose him to a higher maximum penalty if the prosecution responded by laying multiple counts. There was also a public interest in the prosecution proceeding. The Court drew on R v Stanton (1991) 52 A Crim R 164, where the Court of Criminal Appeal declined to stay proceedings in a similar situation, noting that a District Court judge can apply CCP Act sentencing principles at the sentencing stage.
On the time extension question, having considered the background set out in the applicant's solicitor's affidavit, the Court was satisfied it was appropriate to extend time to permit the motion to be heard.
Orders Made
- The time for filing the Notice of Motion was extended to 27 May 2016.
- The application for a stay of the indictment was refused.
Key Takeaways
- A permanent stay of criminal proceedings is available only in the most exceptional circumstances, where the unfairness is so fundamental that no measures at trial or sentence could adequately remedy it.
- Where a young offender is charged on a single indictment count that encompasses conduct both before and after their 18th birthday, the inability to access the Children's Court may constitute potential unfairness, but does not automatically warrant a stay.
- The District Court confirmed it can apply the principles and sentencing considerations in the CCP Act, including s 6 and the approach in R v GDP, even when sentencing for a Commonwealth offence that spans the age of majority, thereby addressing much of the unfairness arising from the single-count charging decision.
- Refusing the stay, the Court balanced the applicant's interest in the protections of the CCP Act against the public interest in prosecuting serious offending and the risk that granting a stay could expose the applicant to a higher maximum penalty through amended or additional charges.
- Under cl 8 of the Criminal Procedure Regulation 2010, a three-month time limit ordinarily applies to stay applications from the time a draft indictment is provided, but the Court may extend that period where the circumstances warrant it.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), s 400.9(1)
- Crimes Act 1914 (Cth), ss 16A(2), 20C
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 10, 15A, 18, 20, 21, 44
- Criminal Procedure Regulation 2010 (NSW), cl 8
Cases
- Maxwell v The Queen (1995) 184 CLR 501
- Regina v Anthony James Stanton (1991) 52 A Crim R 164
- Walton v Gardiner (1993) 177 CLR 378
- Jago v District Court (NSW) (1989) 168 CLR 23
- Barton v The Queen (1980) 147 CLR 75
- Barron v Attorney-General (1987) 10 NSWLR 215
- Williams v Spautz (1992) 174 CLR 509
- Director of Public Prosecutions v PM [2006] NSWCCA 297
- R v GDP (1991) 53 A Crim R 112
- Elias v The Queen (2013) 87 ALJR 895