AC v The Queen

[2010] NSWSC 673

CITATION:	AC v R [2010] NSWSC 673
HEARING DATE(S):	23 June 2010
JUDGMENT DATE :	23 June 2010
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
DECISION:	Pursuant to s 19(3)(a) of the Children (Criminal Proceedings) Act 1987, the applicant AC serve the remainder of his sentence, before release to parole, as a juvenile offender.
CATCHWORDS:	CRIMINAL LAW - juvenile convicted of manslaughter - application to serve prison term in juvenile centre - whether special circumstances as defined - HSC courses not offered by adult gaols - order that juvenile remain in juvenile centre to complete education.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987
CATEGORY:	Consequential orders
PARTIES:	AC Regina
FILE NUMBER(S):	SC 2009/3746
COUNSEL:	P Barrett (Crown) R Pontello (AC)
SOLICITORS:	L Burgoyne - DPP (Crown) O'Brien Solicitors (AC)

OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE DAVID KIRBY

Wednesday 23 June 2010

2009/3746 REGINA v “AC”

JUDGMENT ON MOTION

1 KIRBY J: On 28 May 2010, I sentenced AC to imprisonment with a non parole period of 3 years to date from 8 January 2008 and to expire on 7 January 2011, with a total sentence of 5 years 3 months to date from 8 January 2008 and to expire on 7 April 2013. He will be eligible for release to parole on 7 January 2011.

2 At the time of sentencing AC, he was housed in a juvenile justice centre. During the sentencing submissions application was made on behalf of AC, under the Children (Criminal Proceedings) Act 1987, for an order that he remain for the time being in the juvenile centre. It was asserted that there were special circumstances as defined by s 19(4) of the Act. The evidence relied upon at that time did not appear adequately to address the requirements of s 19(4)(b) concerning the programmes being undertaken by AC and their availability outside juvenile justice centres. I gave leave to make further application, providing further evidence, if so advised.

3 On 18 June 2001, a Notice of Motion was filed seeking an order that AC serve the remainder of his sentence as a juvenile offender. The Motion as supported by an affidavit by Mr Peter O’Brien, the solicitor for AC. It annexed various reports. One was from William Alexander and Szanthie Taylor, the Principal and Assistant Principal of Girrakool Education and Training Unit of 7 June 2010. The report confirmed that AC was currently enrolled at the Girrakool Education and Training Unit. He is currently studying for his Higher School Certificate and is enrolled in a number of subjects. He is in an controlled school environment with associated support within the Frank Baxter Juvenile Detention Centre.

4 A further report was received from Mr Anthony Becker, the Principal of the Adult Education and Vocational Training Institute (“AEVTI”) within the New South Wales Department of Corrective Services. The letter indicates that New South Wales does not offer the New South Wales Higher School Certificate to inmates detained in correctional centres. Further, Mr O’Brien included in his affidavit information he had received by email from the Department of Education, indicating the differences between the education courses available to offenders detained in juvenile detention centres and those available in correctional centres. The document provides further confirmation of the assertions made in the other material.

5 The Crown does not oppose the making of the order which is sought, provided the person is otherwise eligible.

6 I am satisfied that there are special circumstances as defined by s 9(4)(b) justifying the order which is sought.

Order.

7 I therefore make the following order:

That, pursuant to s 19(3)(a) of the Children (Criminal Proceedings) Act 1987, the applicant AC serve the remainder of his sentence, before release to parole, as a juvenile offender.
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