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Court of Criminal Appeal 1 February 2022

R v AR

[2022] NSWCCA 5

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCING PENALTIES COMMUNITY SERVICE ORDER SENTENCING PROCEDURE CORRECTION OF SENTENCE SENTENCING PROCEDURE

Citation: R v AR [2022] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 1 February 2022
Judges: Meagher JA, Wright J, Fagan J

Background

The respondent, referred to as "AR" under a pseudonym required by the Children (Criminal Proceedings) Act 1987 (NSW), was 15 years old when she committed a serious aggravated kidnapping offence in March 2020. Together with three others, she detained a 13-year-old boy, bound him with duct tape, recorded assaults upon him, and stole his mobile phone. The offence of aggravated take and detain for advantage under s 86(3) of the Crimes Act 1900 (NSW) carries a maximum penalty of 25 years imprisonment.

Because the offence qualified as a "serious children's indictable offence" under the Children (Criminal Proceedings) Act, it was dealt with in the District Court "according to law" rather than summarily. AR pleaded guilty and was sentenced on 18 February 2021, when the District Court imposed a Community Correction Order of 18 months and recorded a conviction.

About three weeks later, the sentencing judge reconsidered the appropriateness of recording the conviction and, on 24 March 2021, purported to reopen the proceedings under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and remove the conviction. The DPP appealed that variation.

  • Whether the District Court had power under s 43 of the Crimes (Sentencing Procedure) Act 1999 to reopen the sentence proceedings in order to withdraw the conviction.
  • Whether a court imposing a Community Correction Order has any discretion to refrain from recording a conviction.
  • Whether the original sentence of 18 February 2021 (which recorded a conviction) was itself contrary to law.
  • Whether the provisions of s 14 of the Children (Criminal Proceedings) Act prohibited the recording of a conviction in the circumstances of this case.

Decision

The Court of Criminal Appeal held that the original conviction recorded on 18 February 2021 was both lawfully required and lawfully made. Section 8(1) of the Crimes (Sentencing Procedure) Act provides that a Community Correction Order may only be made by a court "that has convicted" an offender. Recording the conviction was therefore a legal precondition to the validity of the Community Correction Order, not a matter within the sentencing judge's discretion.

The Court then considered whether s 43 gave the sentencing judge power to reopen proceedings. That section permits reopening only where a penalty has been imposed that is "contrary to law" or a required penalty has not been imposed. Because the original sentence was lawfully imposed and the conviction was correctly recorded, there was no error of that kind. The sentencing judge therefore had no power under s 43 to reopen the proceedings for the purpose of withdrawing the conviction.

The Court also rejected AR's cross-appeal grounds. AR argued that s 14(1)(a) of the Children (Criminal Proceedings) Act, which generally prohibits the recording of a conviction against a person who was under 16 at the time of the offence, applied here. The Court found that s 14(2) of the same Act negated that prohibition because the offence was not dealt with summarily. The "dealt with according to law" regime under ss 16 and 17 of the Act removed any discretion to avoid recording a conviction.

AR also argued, through a separate cross-appeal ground, that the sentencing judge failed to consider alternative penalties that would not require a conviction. The Court dismissed this ground, noting that it was AR's own counsel who had proposed a Community Correction Order in written submissions the day before the original sentence hearing. No error was established in the sentencing judge's failure to expressly address lesser alternatives.

Orders Made

  • Appeal allowed.
  • The order of Grant DCJ made 24 March 2021 removing the conviction in respect of the aggravated take and detain offence is vacated.
  • The order made on 18 February 2021 (which recorded a conviction) is confirmed.
  • Leave granted to the respondent to cross-appeal against sentence and to amend the cross-appeal to include the additional ground formulated at the hearing on 27 August 2021.
  • The respondent's cross-appeal against sentence is dismissed.

Key Takeaways

  • Under s 8(1) of the Crimes (Sentencing Procedure) Act 1999, a Community Correction Order can only be made against a person who has been convicted. Recording a conviction is a legal prerequisite to the order's validity, not a discretionary step.
  • Section 43 of the Crimes (Sentencing Procedure) Act 1999 confers power to reopen proceedings only where the original penalty was contrary to law or a required penalty was omitted. It does not authorise reopening to correct a lawfully imposed sentence simply because the sentencing judge later has second thoughts.
  • Where a serious children's indictable offence is dealt with "according to law" in the District Court under ss 16 and 17 of the Children (Criminal Proceedings) Act 1987, the general prohibition on recording convictions against offenders under 16 (in s 14(1)(a)) is disapplied by s 14(2).
  • No error arises from a sentencing judge's failure to expressly address lesser sentencing alternatives where it was the offender's own counsel who proposed the penalty ultimately imposed.
  • The Court of Criminal Appeal reinstated the original sentence, emphasising that a conviction which is a precondition to the validity of a sentencing order cannot be withdrawn by the sentencing court after the fact under the guise of correcting error.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 14, 15A, 16, 17
- Crimes Act 1900 (NSW), ss 59(2), 61, 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 43
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10
- Bungie v R [2015] NSWCCA 9
- HA & SB v The Director of Public Prosecutions (2003) 57 NSWLR 653; [2003] NSWSC 347
- Maxwell v The Queen (1996) 184 CLR 501
- R v WKR (1993) 32 NSWLR 447