DJ v R

Grounds of Appeal

1. By Notice of Application for Leave to Appeal filed on 6 September 2017, the Applicant relied upon the following grounds of appeal: 1. Ground 1- The sentencing Judge erred in imposing a sentence according to law in relation to the offences on the s.166 certificate. 2. Ground 2 - The sentencing Judge erred by failing to apply the provisions of the Children (Criminal Proceedings) Act 1987 when sentencing the Applicant in relation to the two offences which had been transferred to the District Court pursuant to s.166 of the Criminal Procedure Act 1986. 3. Ground 3 - The sentences imposed for the offences were manifestly excessive.
2. It will be seen that Grounds 1 and 2 are directed to the sentences imposed by the District Court for the related offences under s.166 Criminal Procedure Act 1986. Sections 5AA and 5AD Criminal Appeal Act 1912 permit the Full Court of the Court of Criminal Appeal to hear and determine an appeal with respect to related offences dealt with by the District Court if an appeal is lodged in relation to the related indictable offence: s.5AD(3)(b).
3. During the hearing before this Court, the parties agreed that this appeal fell within that provision as the appeal involved the s.33A(1)(a) strictly indictable offence as well as the related offences (T12, 4 October 2017).

Facts of Offences

1. A Statement of Agreed Facts was tendered at the sentencing hearing. The sentencing Judge made the following findings of fact (which were not challenged in this Court).
2. On 1 February 2016, the victim, JA (a 27-year old male), attended a house in Mudgee. The Applicant and his family lived at an address in the same street in Mudgee. Prior to the incident giving rise to the offences, there had been an ongoing conflict between the victim and the Applicant's father, RJ. On 3 August 2015, RJ had been convicted of an assault on JA which had occurred in Mudgee.
3. On the afternoon of 1 February 2016, the Applicant's brother, BS, was visiting the family home. At about 3.20 pm, BS left the family home with his girlfriend and they walked to a nearby shop to buy phone credit. On his way, BS passed JA who was standing outside the house he was visiting. A verbal exchange occurred between the two men. BS returned to the Applicant's home.
4. A little later, a fight broke out between several persons in the street. At this point, the Applicant and BS walked over to the house where JA had been visiting. JA took off his shoes and hat and met the Applicant and BS in the middle of the road. BS commenced to throw punches at JA and the Applicant joined in. JA responded by throwing punches back. At one stage, JA grabbed the Applicant and pushed him in front of BS to prevent both the Applicant and BS holding him at the same time.
5. During the exchange, BS picked up a rock and struck JA causing a laceration above his left eye. RJ had been inside the house and heard yelling coming from the street. RJ came out and saw the Applicant and BS fighting with the victim in the street. RJ went back inside the house and picked up a metal pole about 50 centimetres long. He emerged from the house with the metal pole and approached JA swinging the pole wildly towards him. JA saw RJ with the metal pole and went to a nearby vehicle and grabbed a steel tube from the rear of the car. JA then struck RJ with the steel tube causing a laceration to RJ's scalp and left calf.
6. During this time, the Applicant went back inside his family house and collected a loaded shortened .22 calibre bolt-action rifle. The Applicant said in evidence at the sentencing hearing that he had obtained the firearm some two-to-three months prior to 1 February 2016 and retained it because he was scared of JA (T11, 29, 13 December 2016).
7. The Applicant emerged from the house holding the shortened firearm in his hands down around his stomach area. The sentencing Judge noted that a photograph of the firearm revealed that it had been significantly shortened. That photograph was contained in the appeal book and the sentencing Judge's description is entirely correct.
8. JA was near the mailbox at his friend's house across the road from where the Applicant lived. The Applicant approached JA pointing the firearm towards him. When the Applicant got to the middle of the roadway between the two houses, he stopped. The Applicant pointed the firearm towards JA who put his hand in the air and said "Do it you dog". JA then took a step towards the Applicant and repeated this phrase. The Applicant then fired one round which struck JA in the left wrist and exited onto the front lawn of JA's friend's house.
9. The Applicant immediately ran back to his family home and thereafter fled over the back fence.
10. Emergency services were called by neighbours who had heard loud arguing and the gun shot. JA was taken to the local hospital at Mudgee for treatment. He refused treatment and returned to his home. Ambulance paramedics attended that address and treated JA before conveying him to the Orange Base Hospital.
11. JA sustained a laceration to the front and back of his left forearm where the projectile had entered and then exited his hand. He also sustained a fracture to his distal radius and a break to his radius with these injuries requiring surgical intervention. The wound was cleaned, however some of the smallest metal fragments were left in situ. A surgical plate was inserted to fix the broken radius.
12. The Statement of Facts indicated that, once the fractures had untied, further surgery would be required to remove the surgical plate and screws to prevent irritation of the tendons.
13. Following numerous police enquiries at various addresses in Mudgee and communications with the Applicant's family, the Applicant presented himself to the Mudgee Police Station on 3 February 2016 accompanied by his father. The Applicant was arrested and charged over this incident. He remained in custody thereafter.

The Applicant's Subjective Circumstances

1. The Applicant was born in September 1999. He was 16 years old at the time of the offences and 17 years old at the time of sentence.
2. The Applicant had no prior criminal history.
3. A background report dated 22 September 2016 prepared by officers of Juvenile Justice NSW was placed before the sentencing court. A report of Anna Robilliard, forensic psychologist, dated 7 December 2016 was also tendered for the Applicant. The Applicant gave evidence at the sentencing hearing.
4. Ms Robilliard noted that the Applicant's IQ was "soundly average", falling between 89 and 103.
5. The sentencing Judge referred extensively to the subjective material in the course of his remarks on sentence.

The Course of the Proceedings

1. To assist an understanding of the grounds of appeal, it is appropriate to refer to the history of the proceedings before the Children's Court and the District Court.
2. When committed for sentence from the Dubbo Children's Court on 29 August 2016, a s.166 certificate accompanied the Applicant. The s.166 certificate identified several back-up offences and related offences. The related offences included the s.93I(2) and s.39(1)(a) offences.
3. When the Applicant's matter was first mentioned before the sentencing Judge on 23 September 2016 at the Dubbo District Court, there was discussion concerning the offences on the s.166 certificate and the parties indicated that those matter were still under consideration (AB79-80).
4. Early in the sentencing hearing on 13 December 2016, his Honour raised the s.166 certificate with the Crown and counsel for the Applicant. At the request of the parties, his Honour noted that the four back-up offences were withdrawn and dismissed. Of the three related offences on the s.166 certificate, the Applicant was granted leave to withdraw his plea of guilty to one matter with the consent of the Crown. That left the s.93I(2) and s.39(1)(a) offences, as to which then counsel for the Applicant said (AB88): "For completeness, the offender would invite your Honour to determine those matters in this Court".
5. The Applicant adhered to his pleas of guilty for those two offences. Accordingly, the two s.166 certificate offences were dealt with by the District Court at the request of the Applicant. No submission was made that those offences should be dealt with other than according to law. A principal focus of submissions by defence counsel (both orally and in writing) was that an order be made that a sentence of imprisonment be served as a juvenile offender under s.19 Children (Criminal Proceedings) Act 1987, with such an order being made by the sentencing Judge.
6. The sentencing hearing proceeded on 13 December 2016 with his Honour passing sentence later that day in ex tempore sentencing remarks.
7. It is appropriate to refer to some of the findings of the sentencing Judge.
8. With respect to the s.93I(2) offence, the sentencing Judge observed that (ROS2): "The possession of the prohibited firearm is no minor matter in itself given in particular that the offender in evidence admitted that he had had that for some two to three months."
9. After reciting the facts of the offences, the sentencing Judge said with respect to the s.33A(1)(a) offence (ROS5): "The offence occurred in a residential street in the middle of the afternoon. I accept the Crown's submission and I am satisfied beyond reasonable doubt there was a disregard to public safety noting the discharge of a firearm in a public street and in noting it was a residential street. The offender deliberately absented himself from the fist fight, obtained the shortened firearm and through a complex set of circumstances to which I will later return he discharged the firearm. There was one shot that probably more through good luck then good management did not do any particular damage to the victim. In those circumstances doing the best I can, the matter is moderately below the mid-range objective seriousness."
10. His Honour noted with respect to the s.33A(1)(a) offence (ROS5-6): "The offence to which the offender has pleaded guilty is one that carries twenty-five years imprisonment as the maximum penalty. The offence therefore is a serious Children's indictable offence within the meaning of that expression in s 3 of the Children (Criminal Proceedings) Act 1987. Therefore the young offender must be dealt with according to law, I have no discretion."
11. His Honour referred to s.6 Children (Criminal Proceedings) Act 1987 and principles with respect to the sentencing of juvenile offenders in KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 and BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159.
12. His Honour said (ROS9): "The offender has nothing recorded against him and accordingly he is to be dealt with as a prior good character. Without wishing to give the matter undue emphasis I again note the need for general deterrence relating to the use of firearms. One would have to be cloistered from the world not to understand the havoc that they wreak in residential and suburban areas. The offender admitted in evidence that he had possessed that firearm for two to three months. I observe that it simply beggars belief that a sixteen year old lad in a country town is able to source a shortened firearm. Although not relevant to the issue of sentence I am left wondering as to whether either or both of his parents were aware of the presence of that firearm in the house."
13. The Court observed that the Applicant had a "particularly strong subjective case" (ROS9). His Honour was satisfied that the Applicant was remorseful. The sentencing Judge was not able to be satisfied on balance that the Applicant was unlikely to reoffend or that there were good prospects of rehabilitation with his Honour noting that it was "simply too early to tell" with much depending upon how the Applicant does upon his release and the manner in which he engages with the appropriate authorities thereafter.
14. The Court made findings concerning the Applicant's thought processes at the time of the offences (ROS10): "The offender then gave an account at bullying at the hand of the victim. I take no persuading that occurred. The offender gave accounts of the victim threatening to cause him violence by jumping on his head and similar threats. The victim was twenty-seven years of age and taller than the offender. The offender at least was of the opinion that the victim had been to gaol. He had heard about the victim being violent. He said he was scared of the victim. That aspect of the offender being scared of the victim needs to be put into the context of the offender separating himself from a fist fight and deliberately going and arming himself with a shortened firearm. However, given the complex set of circumstances, in particular what is noted at para 46 of Ms Robilliard's report in exhibit 1, what led to the offence is, I am satisfied, a complex set of circumstances of which fear was a part."
15. The sentencing Judge explained his finding of special circumstances in the following way (ROS13): "There must clearly be a very significant finding of special circumstances. The offender's age, this is his first time in custody and more particularly a very significant need for intensive and extensive supervision to ensure that he remains free from illicit substances and that he is assisted in making appropriate life choices."
16. His Honour referred once again to the circumstances in which a 16-year old came to possess a shortened firearm (ROS14): "The complex set of circumstances was appropriately emphasised. It was also emphasised that the offender himself disclosed that he had possessed the firearm for some period of time. Certainly that is to his credit, but I cannot help but again observe it simply beggars belief that a sixteen year old lad is able to source a firearm in a country centre. Or anywhere else for that matter."
17. The sentencing Judge made the following findings (ROS15): "Clearly this was not planned or organised. I would accept on balance of probabilities that there was some provocation by the victim given not only what was said by the victim on the day but also the history of bullying and to an extent I am also prepared to find on balance that the offender was acting under duress."
18. Having determined that a sentence of full-time custody was the only appropriate sentence in the matter, his Honour addressed the issue of accumulation (ROS16): "There is also the issue of partial accumulation. I am of the opinion that the sentences for the two firearms offences attaching to the s 166 certificate can be dealt with by way of concurrent sentences, that is to say concurrent with each other. However, given the nature of the offending and the period of time for which the offender had possessed that firearm there must be some meaningful accumulation so far as the offence contrary to s 33A is concerned."
19. As noted earlier, the sentencing Judge directed that the sentence be served in a juvenile institution.

Ground 1 - Suggested Error in Imposing Sentences According to Law in Relation to Offences on s.166 Certificate Submissions of Parties

1. Mr Averre, counsel for the Applicant, submitted that the sentencing Judge erred in imposing sentences of imprisonment for the two offences on the s.166 certificate. Counsel noted that the s.39(1)(a) offence was a summary offence and the s.93I(2) offence was an indictable offence which was capable of being disposed of summarily. The s.33A(1)(a) offence was a "serious children's indictable offence" for the purpose of s.3 Children (Criminal Proceedings) Act 1987 so that it must be dealt with according to law: s.17 Children (Criminal Proceedings) Act 1987.
2. Reliance was placed upon provisions including ss.7 and 31 Children (Criminal Proceedings) Act 1987 and s.168 Criminal Procedure Act 1986 in support of an argument that the District Court did not have jurisdiction to sentence the Applicant for the offences on the s.166 certificate at all or, if it did, that its sentencing powers were confined to the powers of the Children's Court.
3. In support of the alternative argument, Mr Averre pointed to the statutory framework and submitted that where a sentence was to be imposed for an offence on a s.166 certificate, the District Court would not be permitted to impose a sentence according to law. He submitted that the sentence to be imposed must be one within the range of sentences as provided for in the Children (Criminal Proceedings) Act 1987.
4. Counsel submitted that a recent amendment to s.31 Children (Criminal Proceedings) Act 1987 by the Justice Legislation Amendment Act 2017 suggested that a legislative amendment was necessary to allow what happened in this case to occur.
5. The Crown submitted that examination of the legislative scheme enabled the District Court to sentence the Applicant for the offences on the s.166 certificate and to do so according to law. It was submitted that the s.166 certificate offences were related offences having regard to the primary offence under s.33A(1)(a) which, of necessity, proceeded to the District Court to be dealt with according to law. The Crown relied upon provisions including s.27 Children (Criminal Proceedings) Act 1987 and s.168 Criminal Procedure Act 1986 in support of the submission that the s.166 certificate offences were capable of being dealt with by the District Court in this case.
6. With respect to the amendment to s.31 Children (Criminal Proceedings) Act 1987, made by the Justice Legislation Amendment Act 2017, the Crown submitted that this amendment should be approached as one removing any possible doubts, but not as one which indicated a prior lack of jurisdiction in the District Court to deal with offences on a s.166 certificate from the Children's Court: Allina Pty Limited v Federal Commissioner of Taxation (1991) 99 ALR 295 at 303. Decision
7. Counsel for the Applicant in the District Court requested the sentencing Judge to determine the two offences on the s.166 certificate. This ground of appeal asserts that it was not lawfully open to his Honour to sentence the Applicant for the s.166 certificate offences. The ground can only succeed if the course taken by the sentencing Judge, at the request of the parties, was not open in law.
8. The s.33A(1)(a) offence was a "serious children's indictable offence" so that the Children's Court did not have jurisdiction to hear and determine that charge: s.28(1)(a) Children (Criminal Proceedings) Act 1987.
9. The s.93I(2) offence was an indictable offence which was capable of being dealt with summarily in accordance with the Criminal Procedure Act 1986. The s.39(1)(a) offence was a purely summary offence.
10. The s.931(2) and 39(1)(a) offences fell within the meaning of "related offence" when viewed in conjunction with the s.33A(1)(a) strictly indictable offence. "Related offence" is defined in s.165(1) Criminal Procedure Act 1986 as follows: "related offence, in relation to an indictable offence, means an offence: (a) that is: (i) a summary offence, or (ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and (b) that arises from substantially the same circumstances as those from which the first indictable offence has arisen, but does not include a back up offence."
11. The s.93I(2) and s.39(1)(a) offences were placed on a certificate at the time of committal for sentence in accordance with s.166 of that Act.
12. Section 167(2)(b) Criminal Procedure Act 1986 provides that, if a court is dealing with an accused person for an indictable offence following committal for sentence, the court may deal with any related offence with which the person has been charged (in accordance with Part 3) unless to do so would not be in the interests of justice.
13. Section 168(3) provides: "In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court."
14. In Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179, Stein JA (Giles and Hodgson JJA agreeing) considered the history and purpose of provisions allowing for back-up offences and related offences to be dealt with in a higher court. His Honour noted that these provisions were designed to ensure the efficient administration of justice by conferring jurisdiction to deal with such summary offences in the Supreme or District Courts (at 663-665 [13]-[16]). Stein JA emphasised the purpose or object of the provisions now contained in s.165-168 Criminal Procedure Act 1986 (at 669-671 [33]-[53]).
15. It is important to keep these considerations in mind in the resolution of the present appeal. This is especially so where both the Crown and counsel for the Applicant wished to have the s.166 certificate offences dealt with in the District Court at the same time as the primary charge. This was an understandable approach which sought to utilise the practical "related offence" provisions in a manner which served the efficient administration of justice. In a similar vein, the practical provisions for taking other offences into account on sentence (then contained in s.447B Crimes Act 1900) were held to apply to juvenile offenders dealt with in the District Court: R v Farrell (1976) 2 NSWLR 498.
16. A number of provisions in the Children (Criminal Proceedings) Act 1987 touch upon the jurisdiction of the Children's Court and the interrelationship between the jurisdiction of that Court and the Local Court with respect to criminal proceedings. Section 7(1) Children (Criminal Proceedings) Act 1987 provides: "7 Jurisdiction of Children's Court not to be exercised by certain other courts (1) Except as provided by this Act, the Local Court may not hear and determine criminal proceedings that the Children's Court has jurisdiction to hear and determine."
17. Section 18 Children (Criminal Proceedings) Act 1987 provides: "18 Other indictable offences (1) A person to whom this Division applies shall, in relation to an indictable offence other than a serious children's indictable offence, be dealt with: (a) according to law, or (b) in accordance with Division 4 of Part 3. (1A) In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters: (a) the seriousness of the indictable offence concerned, (b) the nature of the indictable offence concerned, (c) the age and maturity of the person at the time of the offence and at the time of sentencing, (d) the seriousness, nature and number of any prior offences committed by the person, (e) such other matters as the court considers relevant. (2) For the purpose of dealing with a person in accordance with Division 4 of Part 3, a court shall have and may exercise the functions of the Children's Court under that Division in the same way as if: (a) the court were the Children's Court, and (b) the offence were an offence to which that Division applies. (3) If a court, in exercising the functions of the Children's Court under subsection (2), makes an order under section 33 that provides for a person to enter into a good behaviour bond or that releases a person on probation, the court may, on referral from the Children's Court under section 40 (1A), deal with the order in the same way as the Children's Court may deal with it under section 40."
18. Sections 26-27 Children (Criminal Proceedings) Act 1987 provide: "26 Application (1) This Part applies to: (a) the Children's Court, and (b) any criminal proceedings before the Children's Court, notwithstanding any law or practice to the contrary. (2) In the event of an inconsistency between this Part and Part 2, this Part shall prevail to the extent of the inconsistency. 27 Application of Criminal Procedure Act 1986 and other Acts (1) Subject to Part 2 and to the rules of the Children's Court, any Act or other law relating to the functions of the Local Court or Magistrates or to criminal proceedings before them applies to: ` (a) the Children's Court, and (b) any criminal proceedings before the Children's Court. (2) In particular (and subject to Part 2 and to the rules of the Children's Court), the provisions of the Criminal Procedure Act 1986 that apply to the Local Court and any criminal proceedings before the Local Court apply to the Children's Court and any criminal proceedings before the Children's Court. (2A) Despite subsection (2), section 211A of the Criminal Procedure Act 1986 does not apply in respect of criminal proceedings before the Children's Court. (3) If this Part and any Act or other law applied by this section (other than the Bail Act 2013) are inconsistent, this Part shall prevail to the extent of the inconsistency."
19. It may be seen that the jurisdiction of the Children's Court generally picks up the jurisdiction of the Local Court under s.27(1) and (2) of the Act.
20. Section 28(1) Children (Criminal Proceedings) Act 1987 provides as follows: "28 Jurisdiction of the Children's Court (1) The Children's Court has jurisdiction to hear and determine: (a) proceedings in respect of any offence (whether indictable or otherwise) other than a serious children's indictable offence, and (b) committal proceedings in respect of any indictable offence (including a serious children's indictable offence), if the offence is alleged to have been committed by a person: (c) who was a child when the offence was committed, and (d) who was under the age of 21 years when charged before the Children's Court with the offence."
21. Prior to amendment in August 2017, s.31 Children (Criminal Proceedings) Act 1987 provided as follows: "31 Hearing of charges in the Children's Court (1) If a person is charged before the Children's Court with an offence (whether indictable or otherwise) other than a serious children's indictable offence, the proceedings for the offence shall be dealt with summarily. (2) Notwithstanding subsection (1): (a) if a person is charged before the Children's Court with an indictable offence (other than an offence that is punishable summarily without the consent of the accused), and (b) if the person informs the Children's Court (at any time during, or at the close of, the case for the prosecution) that the person wishes to take his or her trial according to law, the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Divisions 2-4 (other than sections 60 and 61) of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act. (3) Notwithstanding subsection (1): (a) if a person is charged before the Children's Court with an indictable offence, and (b) if the Children's Court states that it is of the opinion, after all the evidence for the prosecution has been taken: (i) that, having regard to all the evidence before the Children's Court, the evidence is capable of satisfying a jury beyond reasonable doubt that the person has committed an indictable offence, and (ii) that the charge may not properly be disposed of in a summary manner, the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Divisions 2-4 (other than sections 60 and 61) of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as if a court attendance notice had been issued in accordance with that Act and as if the Children's Court had formed the opinion referred to in section 62 of that Act. (4) If, in the circumstances referred to in subsection (3), the Children's Court commits a person for trial, the Children's Court shall forthwith furnish to the person a statement of the reasons for its decision to commit the person for trial instead of dealing with the matter summarily. (5) Notwithstanding subsection (1): (a) if a person is charged before the Children's Court with an indictable offence, and (b) if, at any stage of the proceedings, the person pleads guilty to the charge, and (c) if the Children's Court states that it is of the opinion that, having regard to all the evidence before it (including any background report of a kind referred to in section 25), the charge may not properly be disposed of in a summary manner, the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 as if the offence were a serious children's indictable offence in respect of which the person had pleaded guilty as referred to in that section."
22. Due to the operation of s.27, the usual procedures relating to s.166 certificates in the Local Court for summary offences and indictable offences that can be dealt with summarily also apply to the Children's Court, subject to any exceptions or limitations on the jurisdiction of the District Court to hear and determine the charges.
23. In my view, the Applicant's argument obscures the fact that s.7(1) Children (Criminal Proceedings) Act 1987 is not an absolute prohibition on the Local Court exercising jurisdiction where the Children's Court possesses jurisdiction. Section 7(1) operates "except as provided by this Act". Section 7(1) in this way is partly facilitative. That s.27 intends to pick up and apply the related offences scheme is one such way in which limited jurisdiction is intended to be conferred. Section 168(3) Criminal Procedure Act 1986 does not operate as an absolute prohibition on any jurisdiction being exercised.
24. The Applicant's contention that the availability of the related offence mechanism by way of s.27 is intended to be defeated by s.168(3) Criminal Procedure Act 1986 would, in my view, contradict what I accept is the clear intention to have that mechanism available.
25. That there is such a legislative intention is demonstrated by Division 4 of Part 2 (ss.16-21) of the Children (Criminal Proceedings) Act 1987 which sets out a scheme by which a court, other than the Children's Court, can sentence juvenile offenders for indictable offences. Given the Local Court has no jurisdiction to determine indictable offences (unless tried summarily), Division 4 of Part 2 is clearly intended to operate with respect to the District Court. It is clearly intended by that Division that indictable offences, other than children's serious indictable offences, would come before the District Court in some circumstances. The only identifiable ways in which this could occur are through the related offence mechanism or by virtue of the application of s.31(3).
26. To suggest that Division 4 of Part 2 is defeated by s.168(3) Criminal Procedure Act 1986 and s.7 Children (Criminal Proceedings) Act 1987 would contradict the common law presumption that every provision of a statute is intended to have effect.
27. I am satisfied that the statutory scheme surrounding the Children (Criminal Proceedings) Act 1987 and the Criminal Procedure Act 1986 enabled the s.166 certificate offences in this case to be dealt with in the District Court at the same time as the primary offence.
28. The August 2017 amendment to s.31, and the extrinsic material explaining this amendment in the form of the second reading speech of the Attorney-General delivered on 21 June 2017, does not assist the Applicant in an argument that, but for the 2017 amendment, related offences coming from the Children's Court could not be dealt with before the District Court. The 2017 amendment should be regarded as a statute enacted for more abundant caution: Allina Pty Limited v Federal Commissioner of Taxation at 303.
29. Indeed, the complexity of the provisions which have been considered in this judgment point to the 2017 amendment serving to remove possible doubts in an area where clarity and simplicity should exist. In this case, examination of the August 2017 amendment does not throw any light upon the interpretation of the earlier statute: Pearce and Geddes, "Statutory Interpretation in Australia", 8th edn, 2014, LexisNexis, paragraph 3.33-3.34.
30. I am satisfied that the s.166 certificate procedure was engaged in this case so that it was open to the sentencing Judge to pass sentence with respect to the s.166 certificate offences and to deal with them according to law. I do not accept that the District Court was confined to the sentencing powers as available to the Children's Court.
31. Accordingly, it has not been demonstrated that the course adopted by the sentencing Judge, at the request of the parties, to determine the s.166 certificate offences was not available as a matter of law.
32. Even if a view was open (which I do not accept) that the s.39(1)(a) offence (a purely summary offence) could not be dealt with according to law, this conclusion would not materially assist the Applicant in this case. An entirely concurrent sentence was imposed for that offence and it has expired. That sentence did not materially affect the overall effective sentencing outcome. If that sentence was quashed, it would not affect the Applicant's sentence.
33. I would reject the first ground of appeal.

Ground 2 - The Sentencing Judge Erred by Failing to Apply the Provisions of the Children (Criminal Proceedings) Act 1987 When Sentencing the Applicant in Relation to the Two s.166 Certificate Offences Submissions of the Parties

1. Mr Averre submitted that it was necessary for the sentencing Judge to consider the provisions of s.18 Children (Criminal Proceedings) Act 1987 before deciding whether to deal with the Applicant according to law or otherwise with respect to the s.93I(2) indictable offence.
2. It was submitted for the Applicant that the sentencing Judge could not impose a sentence of imprisonment for that offence without first considering and applying the provisions of s.18.
3. It was submitted that it was not open to the District Court to impose a sentence of imprisonment for the s.39(1)(a) offence.
4. The Crown noted that no submission in accordance with this ground was advanced in the District Court so that it was necessary for the Applicant to overcome the principles in Zreika v R (2012) 223 A Crim 460; [2012] NSWCCA 44 at 477-479 [79]-[83].
5. It was submitted, in any event, that the sentencing Judge had regard to the various considerations contained in s.18(1A) in the course of an ex tempore judgment delivered at a very busy country court.
6. The Crown submitted that error had not been established. Decision
7. I have concluded (under Ground 1) that the s.166 certificate offences were properly before the District Court for the purpose of sentence. There was no doubt that the primary offence had to be dealt with according to law. The sentencing hearing proceeded upon the practical basis that the Court would impose sentences for each of the three offences, with a significant argument advanced for the Applicant being that sentences of imprisonment which were imposed should be served as a juvenile offender under s.19 Children (Criminal Proceedings) Act 1987. The sentencing Judge accepted this submission and made an order to this effect with respect to the sentences.
8. The objective circumstances of the offences and the subjective circumstances of the Applicant were canvassed in detail at the sentencing hearing. The sentencing Judge paid regard to s.6 Children (Criminal Proceedings) Act 1987 and principles concerning the sentencing of juvenile offenders. The various considerations under s.18(1A) of that Act were touched upon in one way or another. In this way, the sentencing Judge took into account relevant considerations in his remarks on sentence: BT v R (2012) 227 A Crim R 354; [2012] NSWCCA 276 at 360-361 [21]-[23].
9. No submission was advanced by counsel for the Applicant that the Court should determine the s.166 certificate offences other than according to law. It was not argued that a sentencing option peculiar to the Children's Court should be utilised. This reflected the practical reality of the sentencing hearing where all related matters were to be dealt with at the one time by the same judicial officer. This represented the practical application of the objects of the related offence provisions as considered in Director of Public Prosecutions v Sinton.
10. This is not a case where the sentencing Judge was bound to do something different to that which was done. Nor is it a case where it can be demonstrated that the sentencing Judge has fallen into error despite the way in which the case proceeded before him.
11. I am satisfied that it was open to the sentencing Judge to impose the sentence with respect to the s.93I(2) indictable offence.
12. It might be said that the high point of the Applicant's argument relates to the s.39(1)(a) summary offence. I am not persuaded that error has been demonstrated with respect to that sentence. It was open to the District Court to impose a sentence of imprisonment utilising the approach considered with respect to the first ground of appeal.
13. But even if it could be argued that some error has infected the sentencing process with respect to the s.39(1)(a) offence, it must be borne in mind that the sentence imposed for that matter was entirely concurrent with the sentence for the s.93I(2) offence and has now expired. To interfere with that sentence would not affect the overall sentencing outcome.
14. The Applicant has not made good the second ground of appeal.

Ground 3 - The Sentences Imposed for the Offences Were Manifestly Excessive Submissions of the Parties

1. The focus of this ground of appeal concerned the decision to partially accumulate (by a period of six months) the sentences imposed for the s.166 certificate offences with the result that the effective non-parole period comprised two years. No issue was taken with the individual sentence for the s.33A(1)(a) offence.
2. It was submitted for the Applicant that the total effective sentence was manifestly excessive because of the accumulation of part of the sentence for the s.166 certificate offences. It was contended that the sentences for those offences should have been entirely concurrent with the sentence to be served for the s.33A(1)(a) offence.
3. With respect to the s.93I(2) offence, Mr Averre submitted that the sentencing Judge should have confined attention to the possession of the firearm on the day of the primary offence as that was the date charged with respect to that offence.
4. The Crown submitted that it was open to the sentencing Judge to accumulate the sentences in the manner in which he did. The Crown emphasised the objective gravity of the offences and submitted that it was appropriate for his Honour to have regard to the extended period of possession of the firearm as well as the possession on the date when the firearm was used to commit the s.33A(1)(a) offence.
5. The Crown submitted that it had not been demonstrated that the sentence was manifestly excessive. Decision
6. To make good this ground of appeal, it is necessary for the Applicant to demonstrate that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at 325 [6].
7. The challenge here is confined in effect to part of the overall sentencing process. No challenge is made to the sentence imposed for the s.33A(1)(a) offence. Rather, the challenge concerns the period of accumulation which extended the effective non-parole period by six months.
8. In my view, it was open to the sentencing Judge to have regard to the fact that the Applicant had acquired the firearm some two-to-three months before using it in determining an appropriate sentence for the s.93I(2) possession offence.
9. This was not a case of momentary possession where the Applicant had picked up and used a firearm which belonged to someone else and which he had not previously possessed. In this case, the Applicant had gone out of his way (despite his youth) to acquire a shortened firearm in a country town some two-to-three months before 1 February 2016. The fact that he had done so because of concerns about JA was taken into account by the sentencing Judge. The Applicant had chosen to arm himself with a loaded firearm which he had available for use if the circumstances arose.
10. This is exactly what happened on 1 February 2016. In the midst of the volatile fracas which was happening in the street, the Applicant elected to go inside the house and emerge with the loaded shortened firearm which he proceeded to use in the manner giving rise to the s.33A(1)(a) offence. It was open to the sentencing Judge to have regard to the Applicant's acquisition of the shortened firearm some considerable time before 1 February 2016. This was a serious example of a s.93I(2) offence on its own.
11. As this Court observed in R v Lachlan [2015] NSWCCA 178 at [72], shortened firearms have no legitimate purpose and are particularly dangerous because of their capacity for concealment.
12. This feature emphasises the appropriateness of the sentencing Judge accumulating the sentence for the s.93I(2) to some extent upon the sentence for the s.33A(1)(a) offence. The sentence for the s.39(1)(a) offence was entirely concurrent with the sentence for the s.93I(2) offence.
13. The sentencing Judge had regard to the objective gravity of the offences and the subjective circumstances of the Applicant including his youth and the absence of any prior criminal history. It was open to the sentencing Judge to impose the sentences utilised in this case.
14. To establish this ground of appeal, it is necessary for the Applicant to demonstrate that the overall sentence, and in particular the accumulation of six months, was unreasonable or plainly unjust so as to render the sentence manifestly excessive. The Applicant has not made good this ground of appeal.

Conclusion

1. The Applicant has not succeeded with any of his grounds of appeal.
2. As noted during the course of the judgment (at [78] and [92]), even if the Applicant had made good a ground of appeal concerning the s.39(1)(a) offence, and taking account of the Applicant's affidavit dated 3 October 2017 affirmed for the purpose of the appeal, I would have concluded that no lesser sentence would have been warranted in law: s.6(3) Criminal Appeal Act 1912.
3. I propose that leave to appeal be granted, but that the appeal be dismissed.
4. R A HULME J: I agree with Johnson J.

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