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Court of Criminal Appeal 12 November 2025

LG v R

[2025] NSWCCA 185

Assault & violenceTheft & propertyTraffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE RELATED OFFENCES ON S 31 CERTIFICATE ROBBERY ARMED WITH OFFENSIVE WEAPON LEAVE TO APPEAL ALLOWED

Citation: LG v R [2025] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 12 November 2025
Judges: Harrison CJ at CL, Lonergan J, McGuire J (McGuire J delivering the leading judgment, Harrison CJ at CL and Lonergan J agreeing)

Background

The applicant, a young person identified only as LG, pleaded guilty in the Children's Court at Dubbo to three offences committed when he was 17 years old: robbery armed with an offensive weapon (Sequence 9), a police pursuit offence involving dangerous driving (Sequence 3), and wounding a person with intent to resist or prevent arrest (Count 1). The wounding offence was committed for sentence to the District Court, while the robbery and pursuit offences were placed on a certificate under s 31 of the Children (Criminal Proceedings) Act 1987 (NSW). A s 31 certificate is a mechanism that sends related offences up to the higher court alongside the committed offence, but keeps those related offences subject to the jurisdictional constraints of the Children's Court.

The District Court sentenced the applicant to an aggregate term of 4 years and 6 months imprisonment with a non-parole period of 2 years and 3 months. The sentencing judge treated the s 31 certificate offences as if they were being sentenced "at law" in the District Court, indicating indicative terms of imprisonment of 15 months (Sequence 3) and 2 years and 3 months (Sequence 9).

The applicant sought leave to appeal out of time, arguing that the sentencing judge had exceeded her jurisdiction by imposing terms of imprisonment for the certificate offences when the Children's Court could only impose control orders, and that the resulting aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred by sentencing the applicant "at law" for the offences on the s 31 certificate, rather than within the jurisdictional limits of the Children's Court
  • Whether the indicative sentence for Sequence 9 exceeded the maximum penalty jurisdictionally available for that offence when sentenced in the Children's Court
  • Whether the aggregate sentence was manifestly excessive as a result of those errors

Decision

Ground 1: Sentencing "at law" for certificate offences

The Court held that the sentencing judge erred by dealing with the s 31 certificate offences as if the District Court had its full sentencing jurisdiction. Section 31(7) of the Children (Criminal Proceedings) Act 1987 and s 168(3) of the Criminal Procedure Act 1986 together confine the District Court, when sentencing for offences on a s 31 certificate, to the same functions and restrictions as the Children's Court. Imprisonment is not an available penalty for those offences within the Children's Court jurisdiction. The sentencing judge therefore had no power to impose imprisonment for Sequences 3 and 9.

Ground 2: Jurisdictional limit for Sequence 9

The Court found that the indicative sentence for Sequence 9 (2 years and 3 months imprisonment) would have exceeded the Children's Court's jurisdictional maximum of a 2-year control order had it been imposed as a standalone sentence. However, because the sentencing judge imposed a single aggregate sentence across all three offences, no separate operative sentence was ever imposed for Sequence 9 alone. On that basis, Ground 2 was not made out.

Ground 3: Manifest excess

Because Ground 1 was established and resentencing was required in any event, the Court found it unnecessary to resolve whether the overall sentence was manifestly excessive.

Resentencing

On resentencing, the Court applied a 25% discount to each offence for the applicant's early guilty pleas. For Count 1, the statutory regime in s 25D of the Crimes (Sentencing Procedure) Act 1999 does not apply to young offenders, but the Court was satisfied that a 25% discount for the utilitarian value of the plea was appropriate, noting the prosecution did not contest this approach. The certificate offences were each sentenced by way of control order, the only penalty available within the Children's Court's jurisdiction.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 29 May 2023 quashed
  • In lieu, the applicant was resentenced (after 25% guilty plea discounts) as follows:
  • Sequence 3: control order of 1 year and 3 months, commencing 14 October 2021 and expiring 13 January 2023
  • Sequence 9: control order of 1 year and 6 months, commencing 14 April 2022 and expiring 13 October 2023
  • Count 1: imprisonment for 3 years and 6 months commencing 14 April 2022 and expiring 13 October 2025, with a non-parole period of 1 year and 9 months expiring 13 January 2024
  • The applicant's earliest parole eligibility date was 13 January 2024, though a separate fixed term for unrelated offending does not expire until 15 May 2026

Key Takeaways

  • Under s 31(7) of the Children (Criminal Proceedings) Act 1987 and s 168(3) of the Criminal Procedure Act 1986, the District Court sentencing offences on a s 31 certificate is bound by the same restrictions as the Children's Court: it cannot impose imprisonment for those offences when imprisonment is not available in the Children's Court's jurisdiction.
  • Imposing a term of imprisonment for a s 31 certificate offence constitutes a jurisdictional error, not merely a sentencing discretion error, because the penalty is simply unavailable.
  • Where an aggregate sentence is imposed, an excessive indicative sentence for one component sequence does not, by itself, constitute an operative error if no separate standalone sentence was imposed for that sequence.
  • The Court of Criminal Appeal confirmed that a 25% discount for the utilitarian value of an early guilty plea remains appropriate for young offenders sentenced in the District Court, even where the automatic discount provisions of s 25D of the Crimes (Sentencing Procedure) Act 1999 do not strictly apply.
  • Suppression of a young person's identity applies under s 15A of the Children (Criminal Proceedings) Act 1987 where the offences were committed before the person turned 18, regardless of the court in which the matter is ultimately sentenced.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 18, 31, 33, 33B
- Crimes Act 1900 (NSW), ss 33(2)(a), 51B, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 25A(1)(b), 25D, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), ss 166-169
- Justice Legislation Amendment Act 2017 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cullen v R [2014] NSWCCA 162
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DJ v The Queen [2017] NSWCCA 319
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Clarke [2013] NSWCCA 260
- R v Henry (1999) 46 NSWLR 346; [1999