R v AR

Court of Criminal Appeal (NSW)|2021-08-27|Before: Meagher JA, Wright J, Fagan J

Judgment

THE COURT: This is an appeal by the Director of Public Prosecutions under Criminal Appeal Act 1912 (NSW), s 5D against a sentence imposed on the respondent by his Honour Judge Grant in the District Court at Griffith on 18 February 2021, as varied by his Honour on 24 March 2021. The respondent was 15 years old at the date of the offence and she is referred to by the pseudonym "AR" in order to comply with s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW).
The respondent pleaded guilty to a charge that on 19 March 2020 she did, without consent, take and detain one LL, a 13-year-old boy, with the intention of obtaining an advantage, namely his mobile phone, contrary to s 86(3) of the Crimes Act 1900 (NSW). The offence was aggravated by the occasioning of actual bodily harm to LL and because it was committed in company. The maximum penalty is 25 years and the offence is therefore a serious children's indictable offence within the meaning of s 3 of the Children (Criminal Proceedings) Act. It was dealt with "according to law", as required by ss 16 and 17 of that Act. (The meaning of this expression in this context is dealt with at [14] below.) The respondent pleaded guilty to two other charges that arose out of the same facts: an assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act, and a common assault contrary to s 61. Those matters were dealt with by the learned sentencing judge at the same time as the serious children's indictable offence, in a manner that is not the subject of appeal.
As varied on 24 March 2021, the sentence imposed for the aggravated take and detain was a Community Correction Order of 18 months, commencing on 18 February 2021 and expiring on 17 August 2022, with no conviction recorded. The grounds of appeal are as follows: 1. Judge Grant erred in purporting to reopen the proceedings pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 2. Judge Grant erred in imposing a sentence that was contrary to law.

Facts

In March 2020 the respondent and the victim both resided in the same city in regional New South Wales. They attended the same high school and, until the commission of the offences, they were friends and had a group of mutual friends of similar age. In the very early hours of 19 March 2020 the victim was at the home of one of the mutual friends. The respondent and three other girls were also present. The respondent borrowed the victim's mobile phone on a pretext. Then she and one of the others decamped, taking the phone. The victim and the remaining two girls set out together in search of the respondent but, after a short time, the girls turned on the victim and forcibly dragged him back to the home. There, while outside the residence, the respondent and two of the others physically set upon the victim, at the same time demanding from him the PIN code for his phone. This gave rise to the charge of common assault.
Following this the whole party went inside and a more prolonged group assault upon the victim took place. It was video recorded by the respondent on the victim's phone. He was repeatedly kicked, punched and threatened with weapons, for which the charge of assault occasioning actual bodily harm was laid. Next, there occurred the events upon which the charge of aggravated take and detain was founded. The respondent and the other three girls bound the victim's wrists and ankles with duct tape and taped over his mouth. While he was thus restrained he was assaulted by the respondent's co-offenders in various ways, including by punching him in the groin and burning his arm with a cigarette lighter. All four assailants, including the respondent, then held the victim to the ground and used a pair of kitchen scissors to cut his hair and shave his eyebrows. He was further assaulted outside the house by being kneed in the chest and groin and struck on the head. The victim eventually escaped and ran to his parents' house.

The course of the sentence proceedings

On 18 February 2021 the sentence hearing took place. The Crown tendered agreed facts, video footage of the assaults as recorded by the respondent on the victim's phone, photographs of the victim's injuries and two reports on the respondent's background, jointly authored by a caseworker and an assistant manager of Youth Justice, a division of the Department of Communities and Justice. In the respondent's case, her mother gave evidence.
In his Remarks on Sentence, delivered ex tempore on 18 February 2021, the learned judge accepted that the respondent had entered her pleas of guilty at the earliest opportunity and that she was entitled to a 25% discount. His Honour found that the respondent had shown genuine remorse and contrition; further, that she had vocational interests and prospects of rehabilitation. The respondent had changed schools in the interests of the victim, to avoid future contact with him, and she had cut ties with the co-offenders. His Honour regarded all of these circumstances as favourable to leniency. In respect of the aggravated take and detain count, the order made and entered on 18 February 2021 was in the following terms: The offender, [AR], is convicted and sentenced to a Community Correction Order for a period of 18 months to commence on 18 February 2021 and expiring on 17 August 2022. Sentence discount of 25.0% is included for [Early Appropriate Guilty Plea]. This Community Correction Order is subject to the following standard conditions: [listed, a-b]. The Community Correction Order is subject to the following additional conditions: 1. The offender is subject to supervision by a Juvenile Justice Officer at [location] Juvenile Justice Office for the period of the Community Correction Order. [listed, 2-3].
On 10 March 2021 his Honour felt some concern about the appropriateness of having recorded a conviction for the offence of aggravated take and detain and about aspects of the penalties that had been imposed for the lesser offences. The latter are not relevant to the appeal. His Honour notified a relisting to hear submissions, with an indication that he contemplated withdrawing the conviction for the more serious offence. This gave rise to the following issues: 1. Whether s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) conferred power upon his Honour to reopen the sentencing decision in the circumstances of this case. 2. Whether the District Court had a discretion to refrain from recording a conviction when making a Community Correction Order.

Relevant statutory provisions

Section 43 of the Crimes (Sentencing Procedure) Act provides as follows: 43 Court may reopen proceedings to correct sentencing errors (1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has - (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard - (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. (3) For the purposes of this section, the court - (a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person's arrest, or (b) if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person's arrest. (4) Subject to subsection (5), nothing in this section affects any right of appeal. (5) For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed. (6) In this section - impose a penalty includes - (a) impose a sentence of imprisonment or a fine, or (b) make an intensive correction order, community correction order or conditional release order, or (c1) make a non-association order or place restriction order, or (d) make an order under section 10 or 11, or (e) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss, suspension or variation of a licence or privilege.
The power to make a Community Correction Order is provided for in s 8(1) of the Crimes (Sentencing Procedure) Act, as follows: 8 Community correction orders (1) Instead of imposing a sentence of imprisonment on an offender, a court that has convicted a person of an offence may make a community correction order in relation to the offender. In Pt 7, ss 84-91 prescribe limits upon the term of a Community Correction Order and provide for standard and additional conditions.
Section 14 of the Children (Criminal Proceedings) Act is relevant to whether the District Court has a discretion not to record a conviction when imposing a Community Correction Order on a young person to whom that Act applies. Section 14 is in the following terms: 14 Recording of conviction (1) Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court - (a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, and (b) may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years. (2) Subsection (1) does not limit any power of a court to proceed to, or record such a finding as, a conviction in respect of a child who is charged with an indictable offence that is not disposed of summarily.

Decision of 24 March 2021; cross-appeal

His Honour heard argument on 12 March 2021. On 24 March, for reasons published that day, he reopened the proceedings and ordered that "no conviction is to be recorded on the community correction order". His Honour held that he had a discretion so to order under s 14(2) of the Children (Criminal Proceedings) Act and that on 18 February 2021, when initially passing sentence, he had failed to exercise that discretion, thereby making an error of law that he was able to correct pursuant to s 43 of the Crimes (Sentencing Procedure) Act. It is from this decision that the Director of Public Prosecutions' appeal is brought, on the grounds set out above.
The Director's appeal has prompted the respondent to cross-appeal, against the eventuality that this Court should hold that his Honour's modification of the orders on 24 March 2021 was unauthorised. The respondent's grounds impugn the original sentencing decision of 18 February 2021, as follows: 1. The sentencing judge erred in imposing a conviction on 18 February 2021. 2. In the alternative, the sentencing judge failed to take into account sentencing practice as at the date of offence and the impact of delay. 3. The sentencing judge erred in failing to consider an alternative under the Crimes (Sentencing Procedure) Act in which a conviction need not be imposed. The third ground was the subject of an application for leave during oral submissions. Leave is granted and the ground will be considered on its merits.

Interpretation of s 14 of the Children (Criminal Proceedings) Act

The interpretation of s 14 of the Children (Criminal Proceedings) Act governs both of the Director's grounds of appeal. Paragraph (b) of subs (1) of s 14 has no application in this case. The relevant charge was not disposed of summarily. Pursuant to ss 16 and 17, it was dealt with "according to law". As stated by Hunt CJ at CL in R v WKR (1993) 32 NSWLR 447 at 449, the expression "according to law" in s 17 means "according to the principles of sentencing ordinarily applied by the courts, without reference to those provisions in Pt 3, Div 4 of the Children (Criminal Proceedings) Act which are otherwise applicable only in the Children's Court". Part 3, Div 4 comprises ss 32-38, wherein available penalties are prescribed.
Paragraph (a) of subs 14(1) precludes a court from recording a conviction in relation to a child "who is under the age of 16 years". Sub-section (2) removed that constraint in relation to the respondent's offence of aggravated take and detain, because the offence was not "disposed of summarily". It was disposed of in the District Court, according to law. The effect of sub-s (2) in the present case was no more and no less than to exempt his Honour from the prohibition in sub-s (1)(a) against recording a conviction.
The learned judge adopted a different interpretation of s 14(2). His Honour held as follows: Section 14(2) has work to do. It provides the Court a discretion not to convict if, (a) it is an indictable offence, and (b) the indictable offence is not disposed of summarily.
We respectfully disagree with that interpretation. When the District Court is dealing according to law with a serious children's indictable offence, sub-s (2) of s 14 does not confer a discretion upon that court to record or not to record a conviction. The subsection is not expressed in the language of conferring a discretion and it does not have that effect. The clear words of the subsection confine its effect to that of negating a limitation prescribed elsewhere, namely in sub-s (1)(a). With that limitation removed, the question whether his Honour had power to refrain from recording a conviction when imposing a Community Correction Order was to be answered, in Hunt CJ at CL's words, "according to the principles of sentencing ordinarily applied by the courts". Those principles, relevantly, include that under s 8 of the Crimes (Sentencing Procedure) Act, a Community Correction Order may only be imposed upon a person who has been convicted.
The above conclusion about the meaning and operation of s 14(2) follows from the application of authoritatively established principles of statutory interpretation. As Hayne, Heydon, Crennan and Kiefel JJ said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] (citations omitted): This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
The respondent contended that, where a charge against a child is "not disposed of summarily", the District Court's power to record or not to record a conviction is wider than the power, in that respect, that is applicable to all adult offenders pursuant to the general law of sentencing. The respondent submitted that the source of the wider discretion is s 14(2). In support of that interpretation the respondent appealed to "section 18, and the scheme of the Act, permitting 'other indictable offences' to be dealt with by a higher court as if sentenced by the Children's Court". The respondent submitted that when sub-s (2) is read "in context with the purpose and scheme of the Act", it is amenable to interpretation as the source of a discretion, independent of the general law, not to enter a conviction in the case of any child who is dealt with for an offence "according to law". We are not able to find in the Act any definitive scheme or context that points to such an interpretation and that would thereby contradict the straightforward language of s 14(2).
On the hearing of the appeal, submissions were addressed to the question of whether "the age of 16 years" referred to in s 14(1)(a) means the age of the child at the date of the offence or at the date of sentencing. It is not necessary to resolve the question. By the operation of sub-s (2), sub-s (1)(a) is and was inapplicable to the sentencing of the respondent for the aggravated take and detain offence. Therefore, whatever event may be intended by sub-s (1)(a) as the event at which a child's age should be determined, that issue of interpretation has no bearing on the present appeal.

Interpretation of s 8 of the Crimes (Sentencing Procedure) Act

The respondent submitted that in s 8 of the Crimes (Sentencing Procedure) Act, where the power to make a Community Correction Order is reposed in "a court that has convicted a person of an offence", the quoted words do not require any more than "the court's acceptance of a verdict or plea of guilty". Therefore, it was submitted, his Honour was not required to record a conviction prior to imposing a Community Correction Order. Consequently, the respondent submits that there was no error in the withdrawal of the conviction on 24 March 2021 and that the Director's contention in appeal ground 2, that a Community Correction Order without a conviction is contrary to law, should be rejected.
In Maxwell v The Queen (1996) 184 CLR 501 at 507, Dawson and McHugh JJ said: The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea.
In HA & SB v The Director of Public Prosecutions (2003) 57 NSWLR 653; [2003] NSWSC 347 at [9]-[12], Dunford J cited the above passage and numerous other authorities that have made the same point and have illustrated it. There the Court had to consider s 24(1) of the Road Transport (General) Act 1999 (NSW), which was in these terms (so far as relevant): Subject to section 25 of this Act, […] a court that convicts a person of an offence under the road transport legislation may, at the time of the conviction, order the disqualification of the person from holding a driver licence for such period as the court specifies.
The question was whether the Children's Court could order disqualification under the above provision, in circumstances where it disposed of an offence under the road transport legislation summarily and, therefore, could not convict by force of s 14(1)(a) of the Children (Criminal Proceedings) Act. Dunford J held that a "finding of guilt followed by imposition of a penalty" under the Children (Criminal Proceedings) Act, "in the absence of specific provision to the contrary or a context which requires a different meaning, constitutes a 'conviction' for the purposes of other legislation, including s 24 of the Road Transport (General) Act." His Honour supported that conclusion as follows: [14] […] This is consistent with the manifest object of the latter Act which is to exclude persons who have been convicted of various types of driving offences which constitute a risk of potential harm to other road users from driving motor vehicles, and hopefully brought to a realisation of the dangers of negligent, dangerous or drunken driving. There is no logical or philosophical reason why such considerations should not apply to young persons any more than to adults.
As Dunford J contemplated at [14], entirely different considerations apply in the present context, where the child offender was not dealt with summarily in the Children's Court but in the District Court and where the operative regime was not the Children (Criminal Proceedings) Act, under which findings of guilt may be made without conviction, but was the general law of sentencing, applicable to adult offenders and required to be applied because the offence was dealt with "according to law". Further, the expression that is to be interpreted, namely, "a court that has convicted a person of an offence", appears in Div 3 of Pt 2 of the Crimes (Sentencing Procedure) Act wherein a sharp distinction is drawn between recording a conviction formally and not doing so. That distinction is part of the gradation of non-custodial alternative dispositions of criminal offences.
The following extracts from some of the sections in Div 3 of Pt 2 of the Crimes (Sentencing Procedure) Act illustrate this point (emphasis added): 8 Community correction orders (1) Instead of imposing a sentence of imprisonment on an offender, a court that has convicted a person of an offence may make a community correction order in relation to the offender. 9 Conditional release orders (1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if - (a) the court proceeds to conviction, or (b) the court does not proceed to conviction but makes an order under section 10(1)(b). (2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors - (a) the person's character, antecedents, age, health and mental condition, (b) whether the offence is of a trivial nature, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. […] (3) To avoid doubt and without limitation - (a) a fine and a conditional release order cannot be imposed in relation to the offender in respect of the same offence, and (b) a conditional release order with a conviction may be made as an alternative to imposing a fine. 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders - (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9), (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. […] (2) An order referred to in subsection (1)(b) may be made if the court is satisfied - (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to discharge the person under a conditional release order. […] (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors - (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction - (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. Note - Certain other Acts and regulations contain provisions to the effect that an order under this section made in respect of an offence is to be treated as a conviction for certain purposes of the legislation concerned. Accordingly, those provisions apply to an order under subsection (1) (b) in respect of the offence and a conditional release order made pursuant to that paragraph. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender. 11 Deferral of sentencing for rehabilitation, participation in an intervention program or other purposes (1) A court that finds a person guilty of an offence (whether or not it proceeds to conviction) may make an order adjourning proceedings against the offender to a specified date - (a) for the purpose of assessing the offender's capacity and prospects for rehabilitation, or (b) for the purpose of allowing the offender to demonstrate that rehabilitation has taken place, or (b1) for the purpose of assessing the offender's capacity and prospects for participation in an intervention program, or (b2) for the purpose of allowing the offender to participate in an intervention program, or (c) for any other purpose the court considers appropriate in the circumstances.
The above sections in Div 4, comprising a coherent scheme of graded alternatives, use the words "convicted" and "conviction" in the formal sense of an order entered on the court record. The terms are used in express contradistinction to concepts such as "finds a person guilty of an offence" (ss 9(1), 10(1), 11(1)), "does not proceed to conviction" (s 9(1)(b)), "without proceeding to conviction" (s 10(1)) and "whether or not it proceeds to conviction" (s 11(1)). Thus, in s 8, the words "a court that has convicted a person" import a requirement that a Community Correction Order cannot be made unless a conviction is formally recorded.

Director's appeal grounds

It follows from the above that on 18 February 2021 the learned sentencing judge made no error of law when he did not exercise a discretion concerning the entry of a conviction at the time of making a Community Correction Order. The general law of sentencing applied and, by force of s 8 of the Crimes (Sentencing Procedure) Act, there was no discretion to be exercised. The respondent had to be convicted. The original order, as made and entered on 18 February 2021, was not "contrary to law" by reason of failure to exercise a discretion. There was therefore no basis for reopening, under s 43 of the Crimes (Sentencing Procedure) Act, the sentence imposed for the aggravated take and detain offence. The narrow scope of s 43 has been considered by the High Court in Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 and by the Court of Criminal Appeal in Bungie v R [2015] NSWCCA 9 at [40]-[41]. The Director's ground 1 must be upheld.
Ground 2 of the Director's appeal must also be upheld. On 24 March 2021 the withdrawal of the recorded conviction, which was a statutory requirement for validity of the Community Correction Order, was contrary to law. Specifically, it was contrary to s 8 of the Crimes (Sentencing Procedure) Act.

Residual discretion to dismiss a Crown appeal

The Court does not accept the respondent's invitation to dismiss the Director's appeal, in exercise of the residual discretion to do so. The exercise of that discretion would not be appropriate where his Honour has, with respect, erred by exceeding his power in the reopening of proceedings and also by withdrawing a conviction that was both properly recorded and essential to the validity of the Community Correction Order.

Respondent's grounds of cross-appeal

None of the respondent's grounds of cross-appeal (set out at [13] above) can succeed. The respondent's ground 1 is advanced upon the basis that s 14(1)(a) prohibited the learned sentencing judge from proceeding to, or recording, a conviction. That ground fails upon the view that the Court has taken of s 14(2), namely, that it negates the prohibition in sub-s (1)(a) when an indictable offence is dealt with other than summarily, as here.
Ground 2 has been argued by the respondent upon the basis that the delay from 19 March 2020 when the offence was committed to 18 February 2021 when she was sentenced resulted in her age increasing from 15 years to 16 years. This is said to have had an impact upon whether or not sub-s (1)(a) of s 14 was engaged. For reasons earlier stated, that subsection was of no consequence because it was disapplied by operation of s 14(2), the charge not having been disposed of summarily.
The respondent's ground 3, that his Honour erred in failing to consider an alternative penalty that would not require conviction, must be rejected in circumstances where it was the respondent's own counsel who proposed, in written submissions dated the day before the original sentence hearing, that the imposition of a Community Correction Order might be considered. That was a realistic and sensible submission on the facts of the case. It cannot be said to be error on the part of the sentencing judge that his Remarks do not expressly refer to lesser forms of non-custodial penalty and do not provide explicit reasons for not adopting them. No error is shown.

Orders

The orders of the court are: 1. Appeal allowed. 2. Vacate the order of Grant DCJ made 24 March 2021 that no conviction be recorded in respect of Sequence 2, aggravated take and detain for advantage contrary to s 86 of the Crimes Act 1900, and confirm the order made by his Honour in respect of the said offence on 18 February 2021. 3. Leave granted to the respondent to cross-appeal against sentence and to amend the cross-appeal by adding ground 3 as formulated during the hearing of the cross-appeal on 27 August 2021. 4. The respondent's cross-appeal against sentence is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2022

Road Transport (General) Act 1999(NSW)

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