Citation: R v Matthew Cole (a pseudonym) (No 2) [2022] NSWDC 239
Court: District Court of NSW
Date: 25 March 2022
Judge: Sutherland SC DCJ
Background
In February 2022, the District Court sentenced a young offender (referred to by the pseudonym Matthew Cole) to eight years' imprisonment with a four-year non-parole period. At the time of sentencing, the offender had recently turned 18, making an adult correctional facility the default place of detention.
The sentencing judge adjourned proceedings part-heard after passing sentence, directing Juvenile Justice to prepare a supplementary report focused specifically on whether "special circumstances" existed under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW). This approach followed the course taken by Hall J in R v AN [2014] NSWSC 1879, where a similar adjournment was ordered to obtain evidence on the same question.
This second judgment addresses that discrete question: whether special circumstances justified an order that the offender serve his non-parole period in a juvenile detention facility rather than an adult prison.
Legal Issues
- Whether "special circumstances" under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) were established, justifying detention of the offender as a juvenile offender despite him having turned 18.
- Which subsection of s 19 applied, given the offender was already 18 and serving a sentence at the time the order was made.
Decision
The Juvenile Justice report, co-authored by the offender's direct caseworker and an assistant manager, identified three primary factors supporting a special circumstances finding. These were: the offender's inability to access Year 12 education or commence tertiary study in an adult setting due to limited online resources; the unavailability in an adult setting of specific youth-focused interventions, including a further psychological assessment and completion of the CHART program; and the offender's vulnerability to more sophisticated adult inmates given his young age.
Sutherland SC DCJ was satisfied that the conditions available in the juvenile facility would substantially advance the offender's rehabilitation in ways not replicable in an adult prison. The judge noted the offender had already demonstrated exceptional personal progress, being described as a model inmate and a positive leader within the facility. The court was careful to acknowledge that youth alone cannot found a special circumstances finding under s 19(4)(a); the determination rested on the concrete rehabilitative and educational opportunities available only in the juvenile setting.
During proceedings, counsel for the offender raised a technical point: because the offender was already 18 and serving a sentence, the operative provision was s 19(1A) rather than s 19(1). The judge accepted this clarification and confirmed that the special circumstances identified under s 19(3) also satisfied the requirements of s 19(1A), ensuring the order was made on the correct statutory footing.
Orders Made
- The court found that special circumstances existed under s 19(3) of the Children (Criminal Proceedings) Act 1987 (NSW).
- An order was made under s 19(1) and s 19(1A) directing that the offender serve his non-parole period as a juvenile offender, up until the earlier of his attaining 21 years of age or becoming eligible for release.
Key Takeaways
- Under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), youth alone is not sufficient to establish special circumstances justifying detention in a juvenile facility; specific factors grounding the finding are required.
- Where a young adult offender is already 18 and serving a sentence at the time the s 19 order is made, the relevant subsection is s 19(1A), not s 19(1), though both may be engaged together where special circumstances are established.
- The District Court confirmed the procedural utility of adjourning proceedings part-heard after passing sentence in order to obtain targeted evidence on the s 19 question, following the approach adopted in R v AN and R v AN (No 2).
- Specific, concrete factors, such as access to secondary and tertiary education programs, availability of targeted rehabilitative interventions, and vulnerability within an adult prison population, were treated as capable of constituting special circumstances under s 19.
- A positive rehabilitation trajectory, evidenced by caseworker reports and conduct within detention, is a relevant consideration in the special circumstances assessment, even though it cannot by itself substitute for the statutory criteria.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 19(1), 19(1A), 19(3), 19(4)(a), 19(4)(b), 19(4)(c)
Cases
- R v AN [2014] NSWSC 1879 (Hall J)
- R v AN (No 2) [2015] NSWSC 308 (Hall J)