JIW v Director of Public Prosecutions (NSW) - [2005] NSWSC 760

No judgment structure available for this case.

CITATION:
JIW v DPP (NSW) [2005] NSWSC 760
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18/07/05

JUDGMENT DATE :

29 July 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Kirby J

DECISION:
(1) An extension of time to appeal is granted; (2) Leave to appeal is granted; (3) Appeal is dismissed; (4) Plaintiff to pay the defendant's costs.

CATCHWORDS:
Criminal Practice & Procedure - child almost 18 years charged dangerous driving causing death - s52A(1)(c) - whether should be dealt with summarily or according to law - construction s31(3) Children (Criminal Proceedings) Act 1987 - duty to give reasons - s31(4).

LEGISLATION CITED:
Crimes (Local Courts Appeal and Review) Act 2001
Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Road Transport (Safety and Traffic Management) Act 1999
Criminal Procedure Act 1986

CASES CITED:
Sergi v Director of Public Prosecutions (C of A, 10.09.91)
Potier v Magistrate Maloney and Ors [2005] NSWSC 336
R v Sherbon (unreported, 5.12.91)
R v MacIntyre (1988) 38 ACR 135
House v The King (1936) 55 CLR 499
R v Whyte (2002) 55 NSWLR 252
R v KRG [2003] NSWSC 751
R v WRK (1993) 32 NSWLR 447
R v Bendt [2003] NSWCCA 78
R v Jurisic (1998) 45 NSWLR 209
Carlson v King (1949) 64 WN (NSW) 65
Pettit v Dunkley (1971) 1 NSWLR 376
Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449
Acuthan v Coates (1986) 6 NSWLR 472
Tez v & Anor (2004) 142 A Crim R 122

PARTIES:
JIW
Director of Public Prosecutions (NSW)

FILE NUMBER(S):
SC 2005/10833

COUNSEL:
P Lakatos (Pl/Appl)
C A Webster (Def/Resp)

SOLICITORS:
D P Barrow - LAC (Pl/Appl)
H Langley - DPP (Def/Resp)

LOWER COURT JURISDICTION:
Local Court

LOWER COURT JUDICIAL OFFICER :
Reimer LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID KIRBY

Friday 29 July 2005

2005/10833 JIW v THE DIRECTOR OF PUBLIC PROSECUTIONS (NEW SOUTH WALES)
JUDGMENT

1 KIRBY J: By a Further Amended Summons, JIW (the plaintiff) seeks the following orders:

1. That leave be granted pursuant to s53(3) of the Crimes (Local Courts Appeal and Review) Act 2001 to appeal against the order of Children's Court Magistrate Mr N Reimer LCM made on 2 February 2005 committing the plaintiff to the Lismore District Court in respect of a charge of dangerous driving occasioning death contrary to s52A(1)(c) of the Crimes Act 1900 ['the Order'].

2. An order pursuant to s55(3)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 setting aside the Order.

3. An order pursuant to s55(3)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 that the proceedings against the plaintiff in respect of a charge of dangerous driving occasioning death be dealt with summarily pursuant to s31(1) of the Children (Criminal Proceedings) Act 1987.

2 The order which the summons seeks to overturn was made on 2 February 2005. By s53(3)(a) of the Crimes (Local Courts Appeal and Review) Act 2001, a person against whom a Magistrate makes an order in relation to committal proceedings may seek leave from the Supreme Court to appeal against such order, but only on a question of law. Application for leave to appeal must be made within such time as may be prescribed by the Court (s53(4)). The time fixed by Pt 51B r 5(3) of the Supreme Court Rules is 28 days. The Magistrate may extend time under Pt 51B r 5(5A) within that 28 day period. The Supreme Court may extend time at any time (Pt 51B r 5(5)).

3 The plaintiff's summons was not filed until 16 May 2005, which was well after the specified time limit. No extension had been sought from the Magistrate within 28 days of the order. The plaintiff therefore requires an extension of time from this Court, quite apart from leave to appeal.

4 An affidavit was filed, providing an explanation for the delay. There was a need to obtain the transcript of the committal proceedings and his Honour's reasons in the Court below, quite apart from Counsel's advice. That all took time. The summons was filed shortly after Counsel had provided that advice.

5 The Crown pointed out, however, that by reason of the delay, the machinery which is set in motion by a Court's order began to operate. The matter was referred to a Crown Prosecutor. On 21 March 2005, he found a bill of indictment. The matter was then listed for arraignment before the Lismore District Court on 22 July 2005, at which time it would ordinarily receive a hearing date. Against that background, the Crown drew attention to the words of Kirby P (Meagher and Handley JJA agreeing) in Sergi v Director of Public Prosecutions (C of A, 10 September 1991): p 8/9

R v Butler

6 In Potier v Magistrate Maloney and Ors [2005] NSWSC 336, Johnson J said this: (para 50)

"50 If a bill of indictment has been found in the District Court, it would require a most exceptional case for this Court to consider intervention by the grant of relief, in effect, to reopen committal proceedings. ..."

7 The Crown very fairly added the following in its written submissions:

Children (Criminal Proceedings) Act

;

8 The plaintiff, indeed, adopted that argument.

9 If the complaint against the orders made in the lower Court has merit, or even if it is arguable, the plaintiff should be given leave to extend the time for filing the summons, and given leave to appeal. I therefore turn to the substance of the application.

Background.

10 JIW was born on 2 February 1986. On 21 October 2003, when he was almost 17 years and 9 months, he was awarded his driver's licence. On 24 October 2003, he was involved in a head-on collision on a country road in which the other driver died. After a committal before Mr Reimer LCM, an order was made that JIW be tried according to law. The appeal to this Court is directed to that order.

11 An understanding of the basis upon which the appeal is made, requires an understanding of the way in which the accident occurred. Between 10.20 am and 10.25 am, JIW was driving north on Ellangowan Road, Yorklea (near Ballina). Ellangowan Road is a country road with farmland on either side. It is paved with bitumen with an aggregate overlay and is about six metres wide. It was a fine day and the road was dry.

12 There were no witnesses to the accident. The only account of what occurred is that of JIW, in his description to the police shortly after the accident, together with such inferences as arise from the position of the two vehicles.

13 The road, at the point of impact, is described as curving to the right (from the viewpoint of JIW) through a bend which is said to be "moderate to sharp". There is also a slight downward slope. On either side of the road there is a clay shoulder. There is no marked centre line.

14 JIW was driving a 1976 Toyota Corona sedan. The deceased was driving a red Toyota sedan, travelling south along the same road.

15 The first police officer at the scene was Snr Const Julie Patston. She spoke to JIW within half an hour of the accident, recording her conversation with a hand-held tape recorder. JIW said this:

"Um, I have been driving on this road for eight years and I came in the middle of the road around that corner ...."

16 JIW said that he "remembered seeing a red thing at the house just around the corner", but he did not see the car. He sustained minor injuries which were treated in hospital that day.

17 He later furnished a more detailed statement to the police, which included the following:

"From my previous experience, and on this occasion I kept to the left hand side of the road going around the corner. As the road slopes downward I consciously kept to the left of the corner so the car did not drop towards the downside of the road."

18 The statement continued:

"As I had just entered the corner I saw a car in front of me. It was not more than 10 metres in front of me ... It was on my side of the road ..."

19 JIW said that he did not swerve to the right, nor left. He was travelling at about 50 to 55 kph. The speed limit on that section of road was 100 kph. JIW said that he had been travelling on this road for about six years. He lived locally with his foster parents. The accident occurred at a time when he was undertaking his Higher School Certificate. He was not affected by drugs or alcohol.

20 The scene of the accident was later examined by Snr Const Stuart Turner, attached to the Crash Investigation Unit at Ballina. Photographs of the two vehicles were taken and a plan prepared. The vehicles were positioned almost off the bitumen, facing each other, although at an angle, on the deceased's side of the road. Both vehicles were extensively damaged. Snr Const Turner offered the following opinion as to what had happened:

"12. As a result of my examination of the collision scene I am of the opinion that vehicle WGL-750, driven by the young person, has travelled in a general northerly direction along Ellangowan Road at a speed not considered to be excessive. On approach and on negotiating the moderate to sharp right corner in the road, the young person has crossed to the incorrect side of the road, 'cutting' the corner dramatically. When almost at the apex of the corner, the young person's vehicle has collided head-on with vehicle SPO-474. It would appear that the deceased has veered his vehicle to the left slightly to avoid the collision and the young person has veered right, very slightly. Both vehicles have collided 'square on' and have deflected very marginally eastward."

21 The vehicles themselves were examined by an expert mechanic. Nothing was wrong with either vehicle that might explain the incident.

22 Snr Const Turner identified a gouge mark on the road's surface which he thought may have been the point of impact. It was to the side of the road, almost off the bitumen, not far from where the vehicles came to rest.

23 A further expert, Snr Const Bryan Bain, examined the evidence and provided a report. He had a number of qualifications in crash investigation and considerable experience. He looked at the physical evidence with a view to identifying the point of impact. He discounted the gouge marks because they were possibly only a pothole. He therefore omitted those marks from his analysis. As to the point of impact, he reached the following view:

"8.2 The absence of any pre-impact and post-impact tyre marks from either vehicle does not permit the writer to conclusively position the vehicles during the collision sequence."

24 However, Snr Const Bain stated that it would not have been possible for JIW to have been on his correct side of the road and for the vehicles to have come to rest in the position they did. His conclusion was expressed in these terms:

The statutory scheme with respect to children.

25 Under the Children (Criminal Proceedings) Act 1987 ("the Act"), "a child" is defined as a person under the age of 18 years. JIW was therefore a child at the time of the accident. After the accident, he was served with a Court Attendance Notice in respect of two offences, one being a charge under s52A(1)(c) of the Crimes Act 1900, namely, dangerous driving occasioning death, and the other, a back-up charge of negligent driving (under the Road Transport (Safety and Traffic Management) Act 1999, s42(1)(a)).

26 The matter proceeded as a committal on the more serious charge before his Honour Mr Reimer LCM at the Casino Children's Court. At the end of the prosecution case, his Honour was obliged to make a determination as to whether JIW should be dealt with "according to law", or should be dealt with under the regime established under Pt 3 Div 4 of the Act. Were JIW dealt with "according to law", he would be subject to the maximum penalty under the law, that is, imprisonment for ten years (s52A(1) Crimes Act 1900), although a Court imposing a custodial sentence may direct (in the case of a person less than 21 years) that the sentence be served in a detention centre rather than an adult prison (s19 of the Act). A child dealt with under Pt 3 Div 4 of the Act, on the other hand, would be subject to a significantly more benign regime where the maximum penalty is a control order (committing the person to the control of the Minister, usually in a detention centre) for a period not exceeding two years (s33(1)(g) of the Act). Accordingly, there are distinct advantages in being dealt with under Pt 3 Div 4 of the Act, rather than "according to law". Here, the learned Magistrate, in circumstances I will shortly describe, determined that JIW should be dealt with "according to law". It is that decision which is under challenge in this appeal.

27 Before dealing with the basis upon which that challenge is made, I should set out the section under which his Honour made his determination, namely, s31 of the Act, and specifically s31(3). Section 31 is in these terms:

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.

(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

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.

(a) if a person is charged before the Children’s Court with an indictable offence, and

(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

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.

(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

28 It will be noticed that "a serious children's indictable offence" is excluded from the Children's Court regime. Such an offence must be dealt with "according to law" (s17 of the Act). Section 3 defines a "serious children's indictable offence" to mean murder, offences punishable by imprisonment for life of 25 years, certain sexual offences, serious firearms offences, and any offence proscribed by regulations. The offence charged against JIW under s52A(1) of the Crimes Act 1900, is not a serious children's indictable offence.

29 In the course of argument, Counsel drew attention to two other provisions which are relevant to the construction of s31(3). First, s6 of the Act sets out certain principles relating to the exercise of criminal jurisdiction. That section is in these terms:

6 Principles relating to the exercise of criminal jurisdiction

A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.

30 Section 18 is also relevant. It deals with a comparable situation to that facing the Magistrate under s31(3), but from the perspective of the Supreme Court or District Court. Counsel for JIW, as I will shortly explain, placed considerable reliance upon the catalogue of issues which the Court is obliged to consider under s18. The section applies where a child is charged with an indictable offence (not being a serious children's indictable offence) and either pleads guilty or is found guilty after trial. So it applies at the point where the Court is considering the penalty that should be imposed. The relevant provision is as follows:

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:

(b) in accordance with Division 4 of Part 3.

(a) the seriousness 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,

(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) an order of recognizance under section 33 (1) (b) or (d), or

31 Where the Court determines that the person should be dealt with according to the Children's Act regime (Pt 3 Div 4), it may exercise the functions of the Children's Court under that division (s18(2)), or it may remit the matter to the Children's Court (s18(3)).

32 There is a further provision which may be thought to have some relevance. Section 28(1) of the Act confers jurisdiction upon the Children's Court in all but serious children's indictable offences. However, it also excludes traffic offences. Section 28(2) is in these terms:

(a) the offence arose out of the same circumstances as another offence that is alleged to have been committed by the person and in respect of which the person is charged before the Children’s Court, or

The committal hearing.

33 The committal proceedings began on 5 November 2004. The matter was stood over part heard until 2 February 2005, when the evidence of one witness was taken. His Honour then heard argument as to whether JIW should be dealt with "according to law" or under the Children's Court regime (Pt 3 Div 4 of the Act). He had the advantage of detailed submissions from the solicitor appearing for JIW, Ms Cusack. The submissions dealt with the evidence and the law. They also dealt with the differing penalties under the two regimes. What distinguished JIW from other cases, according to these submissions, was the absence of aggravating features, such as alcohol, drugs or speed. The prosecution needed to establish an element of "dangerousness" in the child's driving. The submissions said this: (p9)

"We have submitted above that the prosecution have not established the necessary quality of 'dangerousness' in the child's driving. However, if it is found that the prosecution have established that the child's driving was 'dangerous', we then submit that the quality of 'danger' must fall at the low end of the scale considering the level of moral culpability involved. In this respect, and when combining the principle that a custodial sentence for a child is only to be imposed as a 'last resort', it is the defence submission that the child does not fall within the guideline that requires a full-time custodial sentence."

34 Elsewhere the submissions said this:

"Had it been the intention of the Legislature (and expectation of the community) for ordinary matters of drive manner dangerous occasioning death (that are alleged to have been committed by children) to be dealt with according to law, the definition of serious children's indictable offence would have been amended accordingly.

The maximum penalty for the s52A(1)(c) offence is ten years. The offence is not a serious children's indictable offence. The matter would ordinarily remain within the Children's Court jurisdiction.

may not be properly disposed of in a summary manner

The facts in this matter and the child's prior criminal/traffic record (the child is not known by way of criminal/traffic record or court alternatives history) do not exhibit any features that would take the matter out of the usual run of cases for this offence type."

35 The prosecutor handed his Honour a decision of the Court of Criminal Appeal in R v Sherbon (unreported, 5.12.91) which dealt with the companion discretion under s18 of the Act. Nathan Sherbon was involved in an accident on 30 September 1989. He was almost 18 years. At the time of the offence, he was unlicensed. He had previously held a provisional licence which had been cancelled. He crossed a double yellow line at a time when he was significantly affected by alcohol. In doing so he caused an accident in which a pregnant woman and her baby died.

36 The trial Judge in that case determined that Mr Sherbon should not be dealt with "according to law", but rather under the regime established by Pt 3 Div 4 of the Act. The Crown appealed against that determination, and the sentence then imposed. The Court of Criminal Appeal (Gleeson CJ, Meagher JA and Lee AJ) unanimously upheld the appeal, saying that the discretion had miscarried. They thereafter resentenced the offender "according to law". Lee AJ (with whom Gleeson CJ and Meagher JA agreed) discussed the provisions of the Children (Criminal Proceedings) Act 1987, referring to the principles which should guide the Court in exercising its criminal jurisdiction (s6). His Honour also referred to the sentencing principle that deterrence is ordinarily of less importance in the case of a child than rehabilitation. Having said that, his Honour added: (p 7)

"However, the objective seriousness of the crime and its prevalence among young persons must be borne in mind lest the courts deny the public the protective purpose of the criminal justice system."

37 Lee AJ then referred to R v MacIntyre (1988) 38 ACR 135. That was a case involving an 18 year old man who had caused an accident in which three people had died. The Court in that case, said this: (p139)

"Likewise with the question of age of the respondent, which his Honour properly took into account and was concerned about, as he naturally would be. In dealing with the commission of a serious crime by a young man the courts make every effort, if it can properly be done, to avoid the penalty of gaol. But as against that, it must be said that when young men are able to hold licenses at seventeen years of age and drive their cars after drinking excessive quantities of alcohol, and at a high rate of speed as in this case, and cause death, no significant reason can be found for differentiating between their driving and that of persons who are older. Each is a potential killer on the roads. The lack of foresight in youth, the reckless spirit of youth will always be there and must always be recognised by courts, but that cannot, when punishment is under consideration, be recognised to the point of leading young drivers - who, regrettably, form a significant proportion of motor traffic offenders - to believe that an offence under section 52A resulting in death will lead to light punishment."

38 Both Sherbon's case and MacIntyre were rather different from the present case, by reason of the presence of alcohol and other aggravating factors. However Lee AJ, commenting upon the exclusion of traffic offences from the jurisdiction of the Children's Court by s28(2), said this: (p7/8)

Regina v MacIntyre

This recognises that those old enough to obtain a licence ought to act responsibly in driving and are old enough for their actions behind the wheel to be dealt with according to law.

39 Having received this material, his Honour then adjourned to read the written submissions and Sherbon's case. He then resumed and heard brief submissions from both parties. At the end of those submissions, his Honour posed the question which he was obliged to address, inviting both parties to agree with its formulation, which they did. He said this: (T17)

"Well the issues are whether, having regard to all the evidence before the Children's Court, the evidence is capable of satisfying a jury beyond reasonable doubt, that is provided for in 31(3)(b), that is the first one. And the second is whether the proceedings cannot properly be disposed of in a summary manner. Is that not right?"

40 His Honour then gave judgment in these terms: (T18/19)

"HIS HONOUR: Well clearly these are, as Mr Sanderson has said, some of the most difficult cases that come before the Court because the outcome of these matters, whether it be a child or an adult, is a very serious outcome and the Courts, and I suppose the Courts following the pressure of the community, that pressure being translated through the legislature, deals with the outcomes very seriously and with large sanctions for an action which is done in a fleeting moment perhaps, involving the management of a motor vehicle. And clearly, in my view, the evidence at this stage is capable of satisfying a jury in accordance with s31(3)(b).

Certainly there is no evidence of huge speed or erratic driving because there is simply no witnesses to say that that was the case. There is interpretation of physical evidence by experts which would lead to certain presumptions or inferences as to what has happened but certainly I am of the view that there is evidence that is capable of satisfying a jury beyond reasonable doubt.

MacIntyre,

And indeed as the section that the Director of Public Prosecutions referred to of persons being old enough to obtain a licence ought to act responsibly in driving and are old enough for their actions behind the wheel to be dealt with according to law.

I have read and considered quite seriously the submissions of the Defence. And I have looked at the statistical outcomes from the Children's Court and clearly the likelihood, if dealt with under the Children's Court legislation, it seems that all the recorded statistics to date, but they are only up until 2002 that one that is printed out there, fall short of any control order or custodial sentence. Whereas the adult statistics pre Jurasic show that 30 percent of outcomes were a custodial sentence and post Jurasic 52 percent.

Now it is very difficult, as has been suggested by the Defence, to make too much use of those statistics because they are adult statistics, but they do point out the seriousness of the matter, and in my view it is a matter that would not be appropriate to be dealt with in this Court, and I am of the view that he should be committed to the District Court."

41 The following exchange then took place with Ms Cusack, appearing for JIW: (T19)

"CUSACK: Your Honour, sorry your Honour, just for the purposes of subs (4) of 31, is your Honour proposing to issue a statement as to the reasons for your decision to commit or will your Honour just note them down in point form?

HIS HONOUR: I think noted in the transcript really, in the comments that I have made, I do not propose to separately do that unless I have to, I do not believe I have to."

The submissions of JIW on appeal.

42 Mr Lakatos, Counsel for JIW, identified two issues which he suggested were sources of error:

"(a) Did the Magistrate err in his decision pursuant to s31(3) that 'the charge may not properly be disposed of in a summary manner'?; and

(b) Did the Magistrate comply with the requirements of s31(4) to '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'?."

43 Dealing with the first issue, the Magistrate was required under s31(1) of the Act to address two questions, the first being whether there was evidence before the Court which, if accepted, was capable of satisfying a jury beyond reasonable doubt that JIW had committed the offence under s52A(1) of the Crimes Act 1900 of dangerous driving causing death. The second question involved a determination of whether the charge may not properly be disposed of in a summary matter. As to the first issue, it was acknowledged that there was evidence capable of satisfying a jury. The only question arising on this appeal, therefore, concerns the second issue (under s31(3)(b)(ii)) and whether, on that issue, the learned Magistrate made an error of law. The error, according to the applicant, was a failure "to take into account some material consideration" (House v The King (1936) 55 CLR 499 at 505).

44 Counsel drew attention to the structure of s31. Paraphrasing his helpful written submissions, Counsel suggested the following propositions emerged from s31:

· First, the Act identified a number of specific offences as "serious children's indictable offences which must be dealt with according to law" (s17, s31(1)).

· Second, all other offences, whether indictable or not (apart from traffic offences) shall be dealt with summarily, subject to the Act (s31(1)).

· Third, where there is evidence capable of satisfying a jury beyond reasonable doubt that a child has committed an indictable offence, and the charge may not properly be disposed of in a summary manner, the proceedings shall not be dealt with summarily, but committed to the District Court (s31(3)).

45 It was pointed out that s31(3) provides no guidance as to the matters which a Court should take into account when determining that a charge may not properly be disposed of in a summary manner. However, one of the principles relating to the exercise of criminal jurisdiction is, according to the applicant, relevant. Section 6(b) provides that children who commit offences bear responsibility for their actions but, because of "their state of dependency and immaturity" they require guidance and assistance.

46 Further, s18 of the Act is instructive, according to the applicant, in the interpretation of s31(1). Section 18 deals with a similar issue, although the section is addressed to the District Court or the Supreme Court, rather than the Children's Court. It should also be noted that the discretion under s18 also arises at a different stage of the proceedings, namely, the penalty stage. It operates either after a plea of guilty or after the person charged has been convicted of an indictable offence (other than a serious children's indictable offence). There is the further difference between s18 and s31(3) that, whereas s31 begins with a presumption that all offences, other than serious children's indictable offences, shall be dealt with summarily, s18 carries no such presumption. The Court starts from a neutral position. That said, there is no reason, according to the applicant, why the same issues identified in s18 should not also inform the Court's determination under s31(3).

47 As set out in s18, the Court dealing with an offender who comes within that section, is obliged to consider the following: (s18(1A))

(a) the seriousness 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,

48 The written submissions furnished on behalf of JIW identified the issues which, it was claimed, his Honour did not address, namely:

"35. The Magistrate made no reference to the following matters at all - the nature and seriousness of the offence charged against the plaintiff (as opposed to the general nature of the offence); the criminal history of the plaintiff and the likely punishment the plaintiff might receive having regard to the above matters (as opposed to the trend of penalties imposed by courts for offences of this kind). It is submitted that these were clearly relevant matters which should have been considered."

49 It was argued that, had these matters been considered, the "result could well have been different". During the course of the hearing, Counsel developed that argument. Section 52A(1), dangerous driving causing death, is unquestionably a serious offence. However, that fact is not determinative. It is not a "serious children's indictable offence" under the Act. The presumption that it is to be dealt with summarily still operates (s31(1)). What was necessary, and what was not done, according to the applicant, was an examination of the degree of responsibility on the part of JIW, on the facts presented to the Court. Here, there were no aggravating factors, such as alcohol, drugs or excessive speed. Rather, the suggestion was, according to the applicant, an error of judgment or momentary inattention.

50 The Director of Public Prosecutions in response drew attention to the nature of the offence under s52A(1). Obviously, it was a serious offence. The guideline judgment in R v Whyte (2002) 55 NSWLR 252 identified the characteristics of what was termed the "frequently recurring case" under that section: (at page 284, para 204)

"(i) Young offender.

(ii) Of good character with no or limited prior convictions.

(ii) Death or permanent injury to a single person.

(iv) The victim is a stranger.

(v) No or limited injury to the driver or the driver's intimates.

(vi) Genuine remorse.

(vii) Plea of guilty of limited utilitarian value."

51 Notwithstanding those features, a person convicted of such an offence may be sentenced to a significant custodial term.

52 Further the Director of Public Prosecutions challenged the construction of s31 suggested on behalf of JIW. Counsel for JIW had pointed to s18 of the Act, arguing that the list of issues in s18(1A) should "inform" the decision made by the Magistrate under s31(3). However, he had then transformed something said to be a guide to interpretation into a prescription, such that, in the context of s31(3), a failure to deal with an issue identified by s18, amounted to an error of law. That, according to the Director, goes too far. The section does not so provide.

53 Dealing with these arguments, plainly the issue arising under s31(3)(b)(ii) and the issue arising under s18 are similar. The catalogue of issues helpfully identified in s18(1A) are the sorts of issues you would expect the Magistrate to address in any event. To that extent, s18(1A) does provide some guidance in respect to the construction of s31(3)(b)(ii). However, the extent to which each subject identified in s18(1A) may be regarded "as a material consideration", such that a failure to deal with it will amount to an "error of law", will depend upon the circumstances of each case.

54 A useful illustration is provided by s18(1A)(d), dealing with a person's prior criminal record. It is a matter which the Court must consider under s18(1A). A failure to do so, in the context of that section, would amount to an error of law. However, a failure to consider that issue in the context of s31(3)(b)(ii) may or may not amount to an error of law, depending upon the nature of the offence. R v Whyte (supra) makes it clear that the previous good character of the offender will not insulate that offender from a custodial sentence if certain other features are present. The guideline judgment recognises that most offenders can claim good character. However, if by reason of the presence of alcohol or other aggravating features, they can be said to have abandoned responsibility and a person dies or is seriously injured, they can expect to go to gaol. The need for general deterrence in that class of offence is such that good character or youth is given rather less weight that may be the case in the context of other offences. Failure to consider previous good character, in the context of that offence, may not amount to failure to have regard to a material consideration.

55 Counsel for the applicant is right to emphasise the presumption arising from s31(1), that charges against children in respect of all but serious children's indictable offences will be dealt with in the Children's Court under Pt 3 Div 4. However, it is a rebuttal presumption. Two general propositions may be stated:

· First, offences vary in their nature and seriousness. An index of their seriousness is the maximum penalty prescribed. However, it is not the only index. For some offences, general deterrence will be of greater importance, often because of the widespread nature of the offence. The more serious the offence and the more important general deterrence, the more likely it is that it may be appropriate that the person charged should be dealt with according to law.

· Secondly, children brought before the Children's Court will obviously vary in age and maturity. The child's age and level of maturity may, in the context of the particular crime, suggest a nexus between the offending behaviour and the absence of maturity. The younger the child and the more immature, and the stronger the nexus between the child's immaturity and the crime charged, the more appropriate it may be that the offence should be dealt with in the Children's Court under Pt 3 Div 4 (cf R v KRG [2003] NSWSC 751, per Whealy J, para 32). The converse is true as a child approaches the age of 18 years and exhibits maturity.

56 Sully J in R v WRK (1993) 32 NSWLR 447, when considering s18 of the Act, said this (Hunt CJ at CL and Campbell J generally agreeing): (at 459)

"The Criminal Proceedings Act does not itself provide any guidelines to which the discretion conferred by s18(1) is to be expressed. The Act, however, does lay down a series of principles to which a court exercising criminal jurisdiction with respect to children shall have regard."

57 His Honour added:

"These 'principles' strengthen me in the view to which I would have been inclined to come without such instruction, namely, that the threshold discretion which arises under s18(1) of the Criminal Proceedings Act is to be exercised upon the basis of a fair and objective view of the true level of culpability - or, as I would prefer to say, of personal responsibility, - of the offender.

If, in a particular case, a crime has been committed, and it is a crime which is, in its nature and incidents, an adult crime rather than a crime which can be conceptualised sensibly as deriving from the offender's ... 'state of dependency and immaturity ...' then that factor is, in my opinion, strong warrant for the exercise of the relevant discretion in favour of dealing with the offender according to law. The graver the crime the greater the warrant."

58 Returning to his Honour's judgment, the complaint of JIW was, first, that his Honour did not deal with the nature and seriousness of the offence. Rather, he dealt with the general nature of the offence without commentary upon the particular facts. Secondly, his Honour omitted any reference to the absence of any criminal or driving record. Finally, his Honour failed, according to the applicant, to advert to the likely punishment as opposed to the trend in respect of penalties.

59 In considering these complaints, the context is important. His Honour was sitting as a Local Court Magistrate, having heard a two day committal. He was not giving final judgment on the facts. He was providing ex tempore reasons for his determination, adverse to JIW, that there was a prima facie case and that it was a matter that could not properly be disposed of in a summary manner.

60 That being the context, it was unnecessary and may even not have been appropriate, to analyse closely the evidence, making specific findings of fact. I believe his Honour said enough to indicate that he well understood the nature and seriousness of the offence. He referred to the absence of aggravating features, namely speed and erratic driving. However, he also referred to "certain presumptions or inferences as to what has happened."

61 His Honour was plainly conscious of the issue of responsibility referred to by Sully J above (supra para 57) and whether the offence may be regarded as the product of immaturity. He referred to JIW being "just under 18 years" and "a substantially mature person". That was obviously an important consideration. Indeed, in the context of a different offence (robbery in company), but an offender who was the same age as JIW, Meagher JA (with whom Dowd and Barr JJ agreeing) said this in R v Bendt [2003] NSWCCA 78: (para 16)

"16 The most disturbing thing about it is that whilst Mr Bendt was technically a child within the meaning of the Act, he was only just so. A child within the meaning of the Act is a person under the age of 18. Mr Bendt was a child but not by much. He was 17 years and 9 months, I think. His Honour should have treated him as an adult, unless there was some real reason why he should be treated as a child. There was, in my view, no real reason why that should take place. It would be a most extraordinary thing if he would be treated differently had he been four months older."

62 It is clear from his Honour's words that he was conscious of the need for general deterrence in this class of offence. He referred to "pressure from the community" being "translated through the legislature", a reference no doubt to Parliament having increased the maximum penalty.

63 Moving to the second complaint, his Honour did not, in terms, refer to the absence of any criminal or driving record on the part of JIW. However, he was plainly conscious of that fact from written submissions made by Ms Cusack on behalf of JIW which he had read moments before he gave judgment. Moreover, it is, as I have said, a matter of less importance in the context of this class of offence than it may be in other offences.

64 As to the third complaint, his Honour was clearly aware of the implications, in terms of penalty, of determining that the matter should proceed according to law, rather than in the Children's Court. He referred to the "outcome in these matters, whether it be a child or an adult" as a "very serious outcome". He was provided with sentencing statistics, which he referred to in the context of the guideline judgment (R v Jurisic (1998) 45 NSWLR 209).

65 In my view, there was no failure to take account of "a material consideration" such that there was an error of law. His Honour exercised his discretion in a way that was open to him on the material before him.

66 Moving to the second issue identified by Counsel for JIW, that is, the failure to provide reasons, as required by s31(4), attention was drawn to a number of authorities dealing with the need to give reasons (Carlson v King (1949) 64 WN (NSW) 65, per Jordan CJ at 66; Pettit v Dunkley (1971) 1 NSWLR 376 at 382; and, more recently, Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at para 41). However, one need look no further than the statutory requirement in s31(4) that reasons must be given forthwith "for the decision to commit the person for trial instead of dealing with the matter summarily".

67 Again the context is important. His Honour was giving ex tempore reasons for a decision which had been the subject of detailed submissions a short time before. Kirby P in Acuthan v Coates (1986) 6 NSWLR 472 made the following comments, reminding an appellate Court that it should be mindful of the context in which the Local Court is operating. His Honour said this: (at 478)

"... It is also to fall into the error of examining this unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates. When that substance is examined, it is sufficiently clear that the magistrate held the correct tests in mind and properly approached the exercise of the discretion reposed in him by the section."

68 See also Shaw J in Tez v Langley & Anor (2004) 142 A Crim R 122 at 128.

69 In my view, his Honour sufficiently exposed his reasons for determining that JIW should be dealt with according to law, rather than in the Children's Court. He adverted to the circumstances of the alleged offence, the fact that JIW was almost 18 and was mature. He also referred to the nature of the offence, where young persons are eligible for a licence at the age of 17. I do not accept that, in respect of the obligation to give reasons under s31(4), there was an error of law warranting the intervention of this Court.

70 JIW should be dealt with according to law, as the Magistrate determined. However, the same issue may arise again at the end of the trial. Were JIW to plead guilty or be convicted of the offence charged, a decision would need to be made (upon the material then available) under s18 of the Act, that is, whether the penalty should be determined according to law, or whether JIW should be dealt with under Pt 3 Div 4 of the Children (Criminal Proceedings) Act 1987.

Order.

71 I make the following orders:

1. An extension of time to appeal is granted.

2. Leave to appeal is granted.

3. However, the appeal is dismissed.

**********

29/07/2005 - Change of Counsel's name. - Paragraph(s) Coversheet.

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Citations

Jiw v Director of Public Prosecutions (NSW) [2005] NSWSC 760

Most Recent Citation

Police v MW [2009] NSWLC 15

Cases Citing This Decision

1

Police v MW [2009] NSWLC 15

Cases Cited

11

Statutory Material Cited

5

Potier v Magistrate Maloney [2005] NSWSC 336

Regina v K.R.G [2003] NSWSC 751

R v Bendt [2003] NSWCCA 78

CITATION:	JIW v DPP (NSW) [2005] NSWSC 760 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18/07/05
JUDGMENT DATE :	29 July 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Kirby J
DECISION:	(1) An extension of time to appeal is granted; (2) Leave to appeal is granted; (3) Appeal is dismissed; (4) Plaintiff to pay the defendant's costs.

CATCHWORDS:	Criminal Practice & Procedure - child almost 18 years charged dangerous driving causing death - s52A(1)(c) - whether should be dealt with summarily or according to law - construction s31(3) Children (Criminal Proceedings) Act 1987 - duty to give reasons - s31(4).
LEGISLATION CITED:	Crimes (Local Courts Appeal and Review) Act 2001 Crimes Act 1900 Children (Criminal Proceedings) Act 1987 Road Transport (Safety and Traffic Management) Act 1999 Criminal Procedure Act 1986
CASES CITED:	Sergi v Director of Public Prosecutions (C of A, 10.09.91) Potier v Magistrate Maloney and Ors [2005] NSWSC 336 R v Sherbon (unreported, 5.12.91) R v MacIntyre (1988) 38 ACR 135 House v The King (1936) 55 CLR 499 R v Whyte (2002) 55 NSWLR 252 R v KRG [2003] NSWSC 751 R v WRK (1993) 32 NSWLR 447 R v Bendt [2003] NSWCCA 78 R v Jurisic (1998) 45 NSWLR 209 Carlson v King (1949) 64 WN (NSW) 65 Pettit v Dunkley (1971) 1 NSWLR 376 Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 Acuthan v Coates (1986) 6 NSWLR 472 Tez v & Anor (2004) 142 A Crim R 122
PARTIES:	JIW Director of Public Prosecutions (NSW)
FILE NUMBER(S):	SC 2005/10833
COUNSEL:	P Lakatos (Pl/Appl) C A Webster (Def/Resp)
SOLICITORS:	D P Barrow - LAC (Pl/Appl) H Langley - DPP (Def/Resp)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Reimer LCM