PD v Director of Public Prosecutions (NSW)

Case •

[2025] NSWSC 16

•

06 February 2025

Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: PD v Director of Public Prosecutions (NSW) [2025] NSWSC 16
Hearing dates: 4 February 2025
Date of orders: 4 February 2025
Decision date: 06 February 2025
Jurisdiction:Common Law
Before: Basten AJ
Decision:

(1)   Set aside the aggregate sentence imposed by the President of the Children’s Court on 18 March 2024.

(2)   In relation to items 1-10 in the Table of Offences (Ex 3), being charges H92305772-1; H75536405-1; H75536405-4; H91294360-1; H294576097-1; H294576097-2; H76622361-1; H92576818-1; H76571659-1 and H166600402-1, impose a fixed term aggregate control order for a period of 12 months to commence on 7 August 2023.

(3)   In relation to items 11-19 in the Table of Offences (Ex 3), being charges H97102516-4; H97102516-5; H81303581-2; H78470623-10; H78470623-11; H78470623-12; H417455894-1; H417455894-5 and H94918746-1, impose an aggregate control order for a period of 2 years to commence on 7 August 2024, expiring on 6 August 2026, with a non-parole period of 6 months, expiring on 6 February 2025.

(4)   List the matter for delivery of reasons at 10:00am on Thursday 6 February 2025.

(5)   Dismiss the summons filed on 30 October 2024.

Catchwords:

APPEAL – sentence appeal – penalty for young person in Children’s Court – whether penalty excessive – aggregate control order imposed for multiple offences – some offences objectively serious – favourable personal circumstances of offender – whether commencement date to be backdated to account for presentence custody

CRIME – Children’s Court – sentencing – control order – period not to exceed 2 years unless accumulating on existing order – aggregate control order subject to 2-year limit – limit of 3 years applicable only to new order extending term of existing order

CRIMINAL PROCEDURE – appeals – appeal from Presidential Children’s Court to District Court – deemed appeal to Supreme Court – criminal proceeding – rules governing civil proceedings inapplicable

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 18, 28, 33, 33A, 33C

Children (Criminal Proceedings) Amendment Act 1989 (NSW), Sch 1

Children (Criminal Proceedings) Amendment Act 2008 (NSW), Sch 1

Children’s Court Act 1987 (NSW), ss 3, 6A, 22A

Children (Detention Centres) Act, s 29

Civil Procedure Act 2005 (NSW), ss 3, 9, Sch 3

Crimes Act 1900 (NSW), ss 51B, 112, 154A, 188, 195

Crimes (Administration of Sentences) Act 1999 (NSW) s 158

Crimes (Appeal and Review) Act 2001 (NSW), s 11

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 45, 53A, 53B, 54D, 58

Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), Sch 2

Road Transport Act 2013 (NSW), s 117

Children’s Court Regulation 2019 (NSW), cl 6

Children’s Court Regulation 2024 (NSW), cl 4

Uniform Civil Procedure Rules 2005 (NSW), Pt 50, r 50.3

Cases Cited:

Huynh v R [2024] NSWCCA 61

JH v R [2019] NSWSC 192

R v XY (CCA, 15 June 1992) BC9203259

RC v Director of Public Prosecutions [2016] NSWSC 665

Wiggins v R [2010] NSWCCA 30

Texts Cited:

NSW Legislative Assembly, Parliamentary Debates (Hansard), 5 April 1989

Category:Principal judgment
Parties: PD (Appellant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:

Counsel:
I Morrison (Appellant’s advocate)
P Madden (Respondent)

Solicitors:
Legal Aid NSW (T McQuade) (Appellant)
J Hoy, Office of Director of Public Prosecutions (Respondent)
File Number(s): 2024/409471
Publication restriction: Section 15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication and broadcast of the appellant’s name or any material which could identify the appellant in connection with these proceedings.
 Decision under appeal 
Court or tribunal:
Children’s Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
18 March 2024
Before:
Skinner DCJ, President, Children’s Court
File Number(s):
2021/00345218; 2022/00386441; 2022/00386522; 2023/00026733; 2023/00026738; 2023/00026742; 2023/00026759; 2023/00027684; 2023/00026802; 2023/00093911; 2023/00311633; 2023/00311666; 2023/00311889; 2023/00316502; 2023/00316946

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 18 March 2024, PD (the appellant) entered pleas of guilty to 19 offences in the Children’s Court. The appellant was sentenced by the President of the Children’s Court to an aggregate control order for a period of 3 years, with a non-parole period of 18 months, backdated to commence on 2 October 2023, with the non-parole period expiring on 1 April 2025.

An appeal was lodged in the District Court, in accordance with Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Appeal and Review Act), alleging that the penalty was excessive. Section 22A of the Children’s Court Act 1987 (NSW), provides that an appeal to the District Court from a decision of a Presidential Children’s Court is taken to be an appeal to the Supreme Court. The procedural confusion resulted in a delay of at least six months, a significant percentage of the non-parole period. On 30 October 2024 the appellant filed a summons in the Supreme Court appealing from the order made in the Children’s Court. The Director submitted the summons was out of time and the appellant needed leave.

An issue arose as to whether the Children’s Court had power to impose a single control order for longer than 2 years.

The Court resentenced the appellant, holding:

  1. The appellant was not required to file a summons in the Supreme Court; s 22A(2) of the Children’s Court Act deems an appeal to the District Court to be an appeal to the Supreme Court. The Uniform Civil Procedure Rules 2005 (NSW) do not apply as the appeal is a criminal proceeding. The appeal is brought as of right, pursuant to s 11 of the Appeal and Review Act: [13]-[16].

  2. Section 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW) empowers the Children’s Court to impose a control order for a period not exceeding two years. An assumption made in the Children’s Court that in matters involving multiple offences s 33A(4) allowed for an aggregate control order of three years was wrong. Section 33A(4) operates only where there is more than one control order and the new order is at least partly cumulative on an existing order: [37], [43].

  3. It was open to the Children’s Court to divide the offences into two groups and impose separate sentences for each. That course was available because the first 10 offences occurred over a year and did not involve serious offending; the other offences occurred several months later, over a period of 4 days and were considerably more serious: [52].

  4. That course should be taken by this Court in resentencing the appellant. The overall length of the orders should reflect the order made in the Children’s Court as no lesser sentence is available. That is despite the favourable findings as to the appellant’s personal circumstances and good conduct whilst in detention, and because of the objective seriousness of the offending: [46]-[50].

  5. However, the President did not backdate the order sufficiently to take into account the periods spent in custody in relation to the group of earlier offences. The first control order should be backdated to the extent of part of those periods, to demonstrate credit given for those periods in the aggregate sentence: [61]-[62].

Huynh v R [2024] NSWCCA 61; Wiggins v R [2010] NSWCCA 30 applied.

JUDGMENT

  1. BASTEN AJ: On 18 March 2024, the appellant, PD, was sentenced in the Children’s Court for 19 offences, by the making of a “control order” for a period of three years, with a non-parole period of 18 months. The sentence was backdated, so that it commenced on 2 October 2023. The non-parole period therefore expires on 1 April 2025.

  2. Following the hearing of the appeal on 4 February 2025, the Court made orders disposing of the appeal. In so far as the appeal sought to vary the length of the control order and the non-parole period imposed by the Children’s Court, it was dismissed. However, the commencement date was varied from 2 October 2023 to 7 August 2023. That accounted for 56 days of 87 days presentence custody, not allowed for by the Children’s Court.

Jurisdiction to hear appeal

Statutory scheme

  1. It is appropriate to explain how it has come about that the appeal has not been heard for a period of almost 11 months. The anxious concern of the courts to protect individual rights and liberties is engaged where criminal laws are drafted in broad or ambiguous terms. The same is true with respect to criminal procedure. That concern is enhanced, rather than attenuated, where the interests are those of children and young persons. However, when it comes to criminal appeals from convictions and sentences in the Children’s Court, the statutory regime is distressingly complex and completely beyond the comprehension of children without lawyers.

  2. Even to identify the jurisdiction of this Court in the present case led to conflicting written submissions and a degree of confusion. It requires reference to seven separate statutes.

  3. The appellant’s offences were dealt with (on pleas of guilty) in the Children’s Court, established by the Children’s Court Act 1987 (NSW). It will be necessary to return to that Act in identifying the source of this Court’s appellate jurisdiction.

  4. The jurisdiction of the Children’s Court to deal with the offences was conferred by s 28 of the Children (Criminal Proceedings) Act 1987 (NSW). The available penalties are prescribed by s 33, which, so far as relevant, provides:

33 Penalties

(1)   If the Children’s Court finds a person guilty of an offence to which this Division applies, it shall do one of the following things—

…

(g)   it may, subject to the provisions of the Crimes (Sentencing Procedure) Act 1999, make an order committing the person for such period of time (not exceeding 2 years) as it thinks fit—

(i)   in the case of a person who is under the age of 21 years, to the control of the Minister administering the Children (Detention Centres) Act 1987, or

(ii)   in the case of a person who is of or above the age of 21 years, to the control of the Minister administering the Crimes (Administration of Sentences) Act 1999.

…

(2)   The Children’s Court shall not deal with a person under subsection (1) (g) unless it is satisfied that it would be wholly inappropriate to deal with the person under subsection (1) (a)–(f1).

…

(4)    Notwithstanding any other Act or law to the contrary, the Children’s Court shall not sentence a person to imprisonment.

(4A) Subsection (4) is subject to section 28B of the Children (Detention Centres) Act 1987 but is not subject to any other provision of that Act.

  1. Given the seriousness of the offending, the Children’s Court was properly satisfied (and indeed the parties agreed) that the lesser penalties under subs (1)(a)-(f1) would be “wholly inappropriate”. Accordingly, the appellant was properly dealt with by way of a control order under s 33(1)(g). Although the control order did not in terms specify which of the two Ministers to whose control the appellant was committed, and although the statement of agreed facts contained no agreed date of birth, it may be accepted that the order in fact placed him in the control of the Minister administering the Children (Detention Centres) Act 1987 (NSW) (Detention Centres Act).

  2. The period of a control order is limited by s 33(1)(g) to 2 years. The statement in the Children (Criminal Proceedings) Act that the power to make such an order is “subject to the provisions of the Crimes (Sentencing Procedure) Act 1999” (Sentencing Procedure Act), does not imply that some other or more extensive power is conferred by the latter Act. Thus, although s 53B of the Sentencing Procedure Act states that “[f]or the avoidance of doubt, the Local Court may impose an aggregate sentence of imprisonment that does not exceed 5 years”, that provision is not picked up by s 33(1)(g) of the Children (Criminal Proceedings) Act.

  3. However, s 33C of the Children (Criminal Proceedings) Act relevantly provides:

33C   Application of Crimes (Sentencing Procedure) Act 1999 to children

(1) Subject to this Act …, the provisions of Parts 3 and 4 of the Crimes (Sentencing Procedure) Act 1999 apply to the Children’s Court in the same way as they apply to the Local Court, and so apply as if—

(a)   a reference in those provisions to the sentencing of an offender to imprisonment were a reference to the making of a control order, and

(b)   a reference in those provisions to a conviction were a reference to a finding of guilt, and

(c)   a reference in those provisions to an escape from lawful custody committed by the offender while an inmate of a correctional centre included a reference to an escape from lawful custody committed by the offender while a detainee of a detention centre, and

(d) a reference in those provisions to a good behaviour bond, community correction order or conditional release order were a reference to a good behaviour bond imposed under section 33.

(2)   (Repealed)

Note—

Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (which provides for standard non-parole periods) does not apply in respect of offences committed by children.

  1. The statement in the note reflects s 54D(3) of the Sentencing Procedure Act. While s 53B is to be found within Pt 4 of the Sentencing Procedure Act, it will only be picked up to the extent that it is not otherwise inconsistent with (and thus “subject to”) provisions of the Children (Criminal Proceedings) Act. The definition of “court” in s 3(1) of the Sentencing Procedure Act expressly excludes the Children’s Court, except to the extent that the Children (Criminal Proceedings) Act otherwise provides.

  2. To determine the jurisdiction of this Court, one turns to the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act), Pt 3. In Pt 3, s 11(1) provides for appeals from the Local Court to the District Court against conviction or sentence (or both). In the Appeal and Review Act, “Local Court” is defined to include “a Children’s Court constituted under the Children’s Court Act”: s 3(1). At least, s 11 provides the general rule: there is a qualification. Section 6A(2) of the Children’s Court Act requires that the President of the Children’s Court be a person holding office as a judge of the District Court. That requirement was introduced in 2009, at which stage s 22A was also introduced, in the following terms:

22A    Appeals in relation to decisions of Presidential Children’s Court

(1)    In this section:

appeal includes the referral of any matter.

decision includes any order or judgment.

Presidential Children’s Court means the Children’s Court constituted by the President.

(2)    An appeal to the District Court under any Act or other law in relation to a decision of the Presidential Children’s Court is, despite the provisions of that Act or law, taken to be an appeal to the Supreme Court.

(3)    Subsection (2) has effect only to the extent provided by the regulations.

(4)    For the purposes of subsection (2), the provisions of any Act or law relating to appeals are subject to such modifications as may be prescribed by the regulations.

(5)    The Governor may make regulations for the purposes of this section.

  1. Because subs (3) states that subs (2) only has effect “to the extent provided by the regulations”, it is necessary to identify a relevant regulation to give effect to s 22A(2). The current provision is cl 4 of the Children’s Court Regulation 2024 (NSW), but that took effect on 23 August 2024, months after the appeal was lodged with the District Court and, indeed, after the time the appeal would otherwise have expired. Accordingly, it is necessary to refer to the Children’s Court Regulation 2019 (NSW), which had effect at the date of sentencing and at the date on which the appellant appealed to the District Court. Clause 6(1) of the 2019 Regulation gave effect to s 22A(2). The appeal was heard in this Court, rather than the District Court, because the appellant was sentenced by the President of the Children’s Court, Skinner DCJ.

  2. Clause 6(1) of the 2019 Regulation also provided, unhelpfully, that the appeal “is subject to any relevant rules of court applying to appeals to the Supreme Court”. That led the Director of Public Prosecutions, in her written submissions, to contend that the appeal was subject to the requirements of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), and particularly r 50.3, which requires that an appeal be commenced by summons filed within 28 days of the date on which the relevant decision under appeal was made.

  3. That submission was wrong in two respects. First, s 22A(2) referred to “[a]n appeal to the District Court under any Act or other law in relation to a decision of the Presidential Children’s Court”. It is that which is taken to be an appeal to the Supreme Court. Accordingly, the appellant’s appeal was correctly and timely lodged with the District Court. The deeming provision took it to be an appeal to the Supreme Court. Secondly, the UCPR do not apply. The Civil Procedure Act 2005 (NSW), s 9(1), provides for rules to give effect to that Act. The rules may make provision “in relation to all civil proceedings in respect of which a Court has jurisdiction”, being matters specified in Sch 3 of that Act. However, the term “civil proceedings” is defined in s 3(1) to mean “any proceedings other than criminal proceedings”, and “criminal proceedings” is defined to include “proceedings on an appeal against conviction or sentence”. The UCPR therefore do not apply to criminal proceedings and this is a criminal proceeding, being an appeal against sentence.

  4. The appeal is brought pursuant to s 11 of the Appeal and Review Act, as of right: leave is not required. Further, the appeal was properly made in accordance with the requirements of an appeal to the District Court, identifying the subject matter of the appeal as the sentence, and identifying the ground as “because the penalty is too severe”. No further grounds were required. The summons was otiose and should be dismissed. Nevertheless, what is troubling is the apparent absence of any mechanism for the notice of appeal to be physically transferred to this Court.

Consequences of statutory scheme

  1. The consequences of this labyrinthine process of statutory construction are deeply troubling. Although the process was partly explored by Davies J in RC v Director of Public Prosecutions [1] and by N Adams J in JH v R [2] , its intricacies are probably still a mystery to most of the legal profession and are almost certainly beyond the comprehension of even a literate young person or child, being a class of offenders of whom many are illiterate.

    1. [2016] NSWSC 665.

    2. [2019] NSWSC 192.

  2. There are other practical consequences. As has been noted, the chronology in this matter is disturbing. Had the matter been an appeal to the District Court, the appeal would likely have been heard and determined by June 2024. In this case, a summons under Pt 50 of the UCPR was filed on 30 October 2024 and the matter, even then, was not listed until February 2025. If the appeal were to be upheld and the sentence reduced, the 18-month non-parole period was within about six weeks of completion. Based on the orders noted above, the appellant is entitled to immediate release on parole, although it requires reference to two further pieces of legislation (other than the Children (Criminal Proceedings) Act) in order to reach that conclusion.

  3. First, pursuant to s 33(1)(g)(i) of the Children (Criminal Proceedings) Act, the appellant was committed to the control of the Minister administering the Detention Centres Act. In that Act, s 29 provides that Pts 6 and 7 of the Crimes (Administration of Sentences) Act 1999 (NSW) (Administration of Sentences Act) apply to a detainee under the Detention Centres Act in the same way as they apply to an adult offender. Part 6 of the Administration of Sentences Act includes s 158(1), which provides that an offender who is subject to a sentence of imprisonment for three years or less, being a sentence for which a non-parole period has been set, is taken to be subject to a parole order (a “statutory parole order”) directing the release of the offender on parole at the end of the non-parole period. Release at the completion of the non-parole period will therefore be mandatory, not discretionary.

  1. The procedural confusion has resulted in a delay of at least six months in determining this appeal. That is a significant period in relation to a non-parole period, five months of which had been served prior to sentencing. As will be explained below, while the offending conduct fully warranted the control order imposed by the President, there remained a question as to whether presentencing custody was adequately reflected in fixing the commencement date for the control order. As the Director observed there were some 87 days of presentence custody not included in the backdating and it was at least possible that an earlier release date might have been achieved had the appeal been disposed of in a timely manner.

  2. Apart from the absence of a procedural mechanism to bring the appeal into this Court, urgent consideration should be given to repealing s 22A. It imposes greater obstacles in the way of an appellant who has been sentenced by the President of the Children’s Court than an appellant sentenced by a Children’s Court Magistrate: that outcome is hard to justify. It is likely to have been the result of misplaced respect for the judicial hierarchy. It is true that the ordinary course would result in an appeal from one District Court judge to another, but the sentencing judge was not sitting as a judge of the District Court. The scheme provides for the appeal from a District Court judge to a single judge of this Court, whereas in other circumstances an appeal or review of a magistrate’s orders would go to a single judge, but an appeal or review of a District Court judge’s orders would go to the Court of Appeal, or in criminal matters, to the Court of Criminal Appeal. Accordingly, even under s 22A the conventional judicial hierarchy is not achieved. On the other hand, nor should it be. The other matters noted above, relevant to the proper administration of justice, should carry greater weight.

Nature of offending

  1. It is necessary to explain briefly why the parties agreed that, for the purposes of s 33(2) of the Children (Criminal Proceedings) Act, it would be “wholly inappropriate” to deal with the appellant otherwise than under par (g) by way of a control order and why the President was correct to accept that concession on behalf of the appellant. To that end, it will be convenient to identify at least part of the conduct, the subject of the offending. Further, that exercise will demonstrate why the sentence in fact imposed in the Children’s Court was, if not lenient, appropriate.

  2. Before embarking on that exercise it may be accepted that the appellant’s misconduct appears to have been a function, in large part, of his taking prohibited drugs. Whilst in custody his behaviour has been of a completely different character. The President recognised this, being able to do so because he had already been in custody for some months when she imposed the control order. After noting that he had been “assessed as having extremely low cognitive function”, the President stated: [3]

“He has told Youth Justice that he started using cannabis at the age of eight; ice at the age of 12 and cocaine at the age of 16, and that the more serious offences … clearly occurred when he was under the influence of a range of different substances….

So, when he is in custody he has been so well-behaved and so respectful and seen to be a role model to younger boys or to other boys, but his conduct in those offences … indicate that he was not in his best state at the time that that happened ….

3. Tcpt, 18/03/24, p 39(20).

  1. Drug-taking cannot excuse criminal conduct, but it should not be seen in isolation. As the President continued: [4]

“He has a background to which Bugmy applies. He has grown up in poverty surrounded by family and domestic violence. His father has mostly been in gaol. He was taken into care as a child who has grown up in Moree from the age of nine with unstable placements but some placement with his grandmother in Inverell and he has been really concerned about his grandmother and his sister at the moment.

In acknowledging that he was taken into care … where the Court has made a positive finding that he is a child in need of care, that he is a young person who has been exposed to multiple adverse childhood experiences and they are likely to have impact on his ability to understand the significance of later behaviour.

I have read the Youth Justice report that was provided and dated 21 February and note that he has been educated in custody.”

4. Tcpt, p 39(30).

  1. Most of the offending involved stolen vehicles, including being carried in a conveyance and driving stolen vehicles recklessly or at a speed or in a manner dangerous to the public. For those, the President indicated individual sentences in the order of 2-4 months. There were also offences involving aggravated break and enter, and offences of intimidation carrying maximum penalties of up to five years. The seriousness of the offending may be illustrated by reference to one series of offences committed on 2-3 October 2023.

  2. The victim was driving north on the Pacific Highway near Port Macquarie in a Mercedes Benz when she saw a white Barina drive close behind her. She also noticed a blue Prado drive up on her right side. The Prado sped up and pulled into the left lane in front of her then slowed down and then accelerated and started swerving across the road. The Prado slowed down again and the Barina pulled alongside the Mercedes and the Prado and the Barina started driving in tandem, slowing down and speeding up and blocking the roadway in front of the victim. She slowed down to about 80 kph and the other cars slowed down to 30 kph forcing her to slow down further. Eventually the Barina and Prado came to a complete stop blocking the road. The victim was “extremely frightened” and drove around the cars and accelerated away at speed, but the other cars chased her, overtook her and again blocked the road. After stopping, she reversed and got around the cars again and whilst driving north saw a sign indicating 7 kms to the Kempsey Service Centre. She drove at high speed, with the cars following her and took the south Kempsey exit. However, having mistakenly made a right turn at a roundabout she turned back to try to get to the safety of the BP Service Centre. When she did a U-turn, the Barina was directly behind her and she felt a heavy collision as it hit her driver’s side door. The Prado also hit her car, having driven on the wrong side of the road to crash into her. The appellant was driving the Prado at the time of impact. Another of the offenders was at the front passenger window, and she saw him trying to smash the window. She got out of the driver’s side door and ran towards the service station, with one of the young men chasing her. He caught up to her and pushed her in the back; she eventually made it to the BP Service Station, having suffered minor injuries to her legs. Police and paramedics arrived a short time later at which stage the Prado had been abandoned in the middle of the road and there was significant damage to both it and the Mercedes.

  3. The offenders returned to the Barina and continued to drive north along the Highway. Police were notified of the incident and followed the Barina. The Barina increased speed up to 200kmh and took an offramp. It ran a short distance down a dead-end road, before performing a U-turn and driving towards the police, almost hitting them. The pursuit continued, with another police car engaged as the Barina returned to the M1. Spikes were deployed and, although the Barina swerved to try and avoid them, all four tyres were punctured. The Barina continued northward until driving off on the west. The tyres on the Barina disintegrated and it continued to drive on all four rims. The car kicked up so much dust that police terminated the pursuit. However, the car was tracked by a police helicopter.

  4. The four offenders abandoned the vehicle, gained entry to a house, stole property and then ran into bushland, where they were tracked by a police dog unit and arrested. The appellant was interviewed by the police and confirmed that he was the driver of the Prado at the time of the collision with the Mercedes in Kempsey.

  5. For the intimidation of the victim, the President indicated an individual sentence of 16 months imprisonment with a further 9 months for the aggravated break, enter and steal from the house where the offenders had abandoned the car.

  6. For three other offences of intimidation, indicative sentences of 12 months, 10 months and 12 months were recorded. The driving offences had lower maximum penalties, and accordingly shorter indicative sentences, but, as the President noted, some of the offending was “really dangerous”. After stating that the sentence would be backdated to commence on 2 October, the President continued: [5]

“There were other times in custody and I have taken them into account when I have set the indicative sentences for the carried in conveyances and the take and drive… and one of the reasons that those indicative terms for the carries in conveyances from Moree and Inverell is because I have taken into account the time you have spent in custody on those in and outs before you got locked up for the DPP matters.”

5. Tcpt, p 42(5).

Limits on powers of Children’s Court

  1. Pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act, the Court has power to impose a control order for a period not exceeding 2 years. [6] However, it appears to have been assumed in the Children’s Court that where multiple offences were involved, a control order could be made so long as it did not require a person to be detained for a continuous period of more than 3 years, on the basis of s 33A(4). Section 33A provides:

33A   Cumulative or concurrent orders etc

(1)   In this section, control order means an order referred to in section 33 (1) (g).

(2)   Unless a direction is given under this section, the period for which a person is required to be detained under a control order commences when the order takes effect.

(3)   If the Children’s Court so directs, the period for which a person is required to be detained under a control order commences when the period for which the person is required to be detained under another control order or other control orders expires.

(4)   The Children’s Court must not make a new control order, or give a direction under this section, if the order or direction would have the effect of requiring a person to be detained for a continuous period of more than 3 years (taking into account any other control orders relating to the person).

(5) Subsections (2) and (3) are subject to section 57 of the Crimes (Sentencing Procedure) Act 1999, as applied by section 33C.

(6) This section does not apply to a control order to which section 33AA applies.

6. See at [6] above.

  1. That provision could only operate in the present case if the phrase “a new control order” referred to any control order being imposed by the Children’s Court, in contrast, perhaps, to the variation of an existing control order.

  2. However, taken in context, that construction should not be accepted. The purpose of s 33A, derived from its language, is to deal with a second or further control order which is to be served cumulatively upon, or partly concurrently with, an existing control order so as to create a continuous period of detention. Further, it predates the introduction of aggregate sentencing into the Sentencing Procedure Act. No variation has been made to the Children (Criminal Proceedings) Act to pick up the expansion of the power of the Local Court to impose an aggregate sentence for a longer period than 2 years. On that understanding, the President exceeded her powers in imposing an aggregate sentence of three years.

  3. The Director had an alternative reading of s 33A based on its legislative history, to which it is appropriate to refer. The current form of s 33A was introduced in 1989. [7] Then, as now, subss (1) and (2) dealt with the commencement of the period of detention, namely “when the order takes effect” but permitting a direction of the Court to allow the period to commence when the period of detention under “another control order” expires. Subsection (4) then provided: [8]

(4)   The Children’s Court must not make a control order or give a direction under this section if the order or direction would have the effect of requiring a person–

(a)   to be subject at any time to control orders requiring the person to be detained for more than 3 years (taking into account any period for which the person has already been detained under a control order to which the person is still subject); or

(b)   to be detained for more than 2 periods specified in different control orders, being periods that are not to any extent concurrent.

7. Children (Criminal Proceedings) Amendment Act 1989 (NSW), Sch 1(13).

8. For a case dealing with the operation of that emanation of s 33A, see R v XY (CCA, 15 June 1992) BC9203259 (Clarke JA, Allen and Abadee JJ agreeing).

  1. The Attorney-General stated in the second reading speech that the purpose of the provision was to make it clear that committal orders could be served cumulatively and “with a maximum total cumulative order of three years”. [9]

    9. NSW Legislative Assembly, Parliamentary Debates (Hansard), 5 April 1989 at 5904.

  2. Subsection (5) was introduced in 2002 to provide that a sentence for an escape was to be served cumulatively upon any other sentence. (It is of no present relevance.)

  3. The present form of s 33A(4) was the result of an amendment in November 2008, [10] removing the limit to two control orders, and adding the word “new” in the opening line, thus providing that the Court “must not make a new control order …”. That amendment was no doubt intended to reflect the object of the section, which was to limit the overall effect of two (or more) control orders by preventing a new order, when added to existing orders, exceeding the 3-year limit. (There may have been a concern that the earlier version of the provision might have invalidated an existing control order.)

    10. Children (Criminal Proceedings) Amendment Act 2008 (NSW), Sch 1 [32].

  4. The same formula, namely “a new sentence of imprisonment”, is found in s 58 of the Sentencing Procedure Act, dealing with consecutive sentences imposed by the Local Court. Thus, the Local Court may not impose “a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment” if the effect would be to extend the date beyond the prescribed limit. That was self-evidently the operation of s 33A(2) and (3) (and remains so) and is reflected in the reference to “a new control order” in s 33A(4). That reading is consistent with subss (5) and (6), which oblige the court to accumulate further control orders for escape or an assault on a juvenile justice officer.

  5. That is not to say that s 33A(4) does not apply to an aggregate control order: it will so apply whether the new control order is for an individual offence or is an aggregate control order, so long as the new order extends an existing period of detention.

  6. The Director submitted that s 33A(4) provided a maximum period for an aggregate control order once the power to make such an order had been picked up by s 33C of the Children (Criminal Proceedings) Act. The 2-year limit provided for by s 33(1)(g) was said to apply to a control order imposed for a single offence; s 33A(4) applied to multiple offences.

  7. That proposition was true, but misleading because it was a precursor to the proposition that when aggregate sentences became available they fell within s 33A(4). That proposition should not be accepted: rather, the subject-matter of s 33A was and remained “control orders”, not offences. It dealt with, and continued to deal with, multiple control orders.

  8. The submission in effect denied s 33(1)(g) any operation with respect to an aggregate control order, but did so without regard to the language of the provision. In its terms, s 33(1)(g) says nothing about the number of offences which may be covered by “an order”. As a result, it remained apt to apply to an aggregate control order, once the power to make such an order was introduced.

  9. Further, to suggest that s 33A deals with aggregate control orders is to give the language of the provision a changed operation once the power to make such orders was introduced. Significantly, s 33A(4) has not been amended since the introduction of aggregate sentencing by s 53A of the Sentencing Procedure Act in March 2011. [11]

    11. Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), Sch 2 [14].

  10. The Director’s reading of s 33A(4) as permitting a single aggregate control order, which does not extend an existing sentence, but may operate for a more than two years, should not be accepted.

  11. It is not as if the legislature did not understand at the time aggregate sentences were introduced that it might be appropriate to extend the constraint on the length of a sentence imposed by the Local Court. It did so, by s 53B of the Sentencing Procedure Act referred to above. The legislature must also be taken to have been aware that, the term “Local Court” in the Sentencing Procedure Act expressly excludes the Children’s Court and that, as the Director accepts, there are additional limitations imposed on the sentencing of children by the Children’s Court.

  12. Prior to the introduction of aggregate sentences in 2011, s 33A(4), to similar effect as s 58 of the Sentencing Procedure Act, was dealing with new sentences to be served cumulatively, or partly cumulatively upon an existing sentence. That operation was not affected by the introduction of a power to impose an aggregate control order. It follows that the President had no power to impose a single aggregate sentence of three years.

Disposition of appeal

Whether sentence excessive

  1. The appellant did not submit that the President’s assessment of the objective seriousness of the offending was erroneous: nor was it. The thrust of the appellant’s submissions on the appeal focused on the appellant’s subjective circumstances, including a report prepared as recently as 31 January 2025 by Youth Justice addressing his conduct in the Detention Centre. Since 25 September 2024, the appellant has been held in Acmena Youth Justice Centre in South Grafton. Importantly, his custody case worker at the Centre stated that he had been on day leave on four occasions in November 2024 – January 2025, supervised either by Acmena staff or family members. He had also taken overnight leave, staying with his grandmother. He was reported to have participated in all programmes offered.

  2. There is no doubt that his response in the Detention Centre has been positive and commendable. As his advocate submitted, his reintegration into the community has been assisted, so as to sustain family and community ties, in accordance with the principle stated in s 6(f) of the Children (Criminal Proceedings) Act. The Court can, as his advocate submitted, take all these matters into account on an appeal against sentence.

  3. That the appellant has been a model detainee should be accepted, but it carries limited weight for two reasons. First, the President already had evidence of his good behaviour during the months he had been detained prior to sentencing. The dramatic difference between his behaviour in the Centre and his behaviour at large in the community was a matter upon which she commented. As has already been noted, she gave significant weight to his willingness to engage with and respond positively to supervision. That assessment weighed heavily in favour of the appellant with respect to both the indicative sentences and the extended period to be served on parole.

  4. The second reason for giving it limited weight, is that, as the President noted, the objective seriousness of the offending conduct required a certain minimum level of detention. That assessment was clearly correct.

  1. It follows that I would not vary the effect of the aggregate control order.

Structure of control order

  1. However, the question is what course should be taken by this Court given the conclusion that the President lacked the power to impose a control order extending beyond two years. Neither party initially raised as an issue the power to impose a 3-year control order. It is, clear however, that the President was of the view that, unless a control order of three years could be imposed, the offences, or at least some of them, should not be dealt with under the special powers available in the Children’s Court.

  2. Not without some misgivings, as it would not generally be appropriate to divide an aggregate sentence into two parts so as to extend its effect, that course is available in the present case. That is because the offending is readily separated into two periods, which might, in other circumstances, have been dealt with in different proceedings. (That is not to imply that there was any problem in dealing with them in one set of proceedings: indeed, that was the correct course to take once the totality of the offending became known to the authorities.) The imposition of two independent control orders allows, on the proper construction of s 33A(4), the combined continuous period to extend to three years.

  3. That course should not be taken if it would be disadvantageous to the appellant: it was not opposed by his advocate. The reason why it was not disadvantageous, is the view of the President, which I share, that the objective seriousness of the offending could not be addressed adequately by a lesser sentence than three years. Had it not been possible to fix such a term, the appropriate course would have been to require the more serious offending in the second group of offences to be dealt with according to law, and not under s 33. [12]

    12. See Children (Criminal Proceedings) Act, s 18.

  4. The offending may conveniently be considered in two groups. The first group include two offences of taking and driving a conveyance contrary to s 154A(1)(a) of the Crimes Act 1900 (NSW); six offences of knowingly being carried in a stolen conveyance contrary to s 154A(1)(b) of the Crimes Act; one offence of police pursuit, failing to stop and driving recklessly contrary to s 51B(1) of the Crimes Act, and one offence of receiving stolen property contrary to s 188(1) of the Crimes Act. These were offences which were to be dealt with summarily in the Local Court unless the prosecutor elected for trial on indictment. They were prosecuted summarily by the police informant.

  5. The second group of offences, in relation to which the Director intervened in the Children’s Court, took place over four days between 30 September 2023 and 3 October 2023. They included one further offence of knowingly being carried in a stolen conveyance; four offences of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); two offences of aggravated break and enter and commit serious indictable offence, contrary to s 112(2) of the Crimes Act; one offence of driving recklessly, furiously or at a speed or in a manner dangerous, contrary to s 117(2) of the Road Transport Act 2013 (NSW) (which related to the offending summarised above involving a Toyota Prado), and one offence of destroy or damage property contrary to s 195(1)(a) of the Crimes Act.

  6. There were discrepancies between the maximum penalties available which did not necessarily reflect the seriousness of the conduct. For example, the aggravated offence of break and enter and commit serious indictable offence (larceny) carried a maximum penalty under s 112(2) of the Crimes Act of imprisonment for 20 years. On the other hand, the very serious acts of intimidation were the subject of charges under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13, which carried a maximum penalty of imprisonment for five years. The President was careful to assess objective seriousness, and indicate an individual sentence which correctly reflected the maximum penalties as well as the nature of the offending.

  7. There was no challenge to the individual sentences indicated by the President, for the group one offences which should be adopted for present purposes. They total some 27 months. An appropriate aggregate sentence for group one offending is 12 months.

  8. Again, there was no challenge to the individual periods of detention indicated by the President with respect the group two offences, which may be adopted for the purpose of resentencing. In total they exceed seven years. In respect of the second group of more serious offences, an appropriate aggregate control order is two years.

Backdating commencement date

  1. It remains to consider the element of pre-custody detention recognised by the President but given effect, in respect of the first group of offences, only in relation to the indicative sentences.

  2. It would have been an error for the President to have disregarded the presentence periods in custody, but she did not do that. There were, as she recognised, two ways in which presentence custody could be taken into account. First, it could be relied on to reduce the sentence imposed; secondly, it could operate to allow a backdating of the commencement date of the sentence. The President adopted the latter approach in relation to the second group; she adopted the former approach in relation to the first group.

  3. Both courses were open, but as has been said on a number of occasions, backdating provides greater transparency, particularly in relation to an aggregate sentence. As Adamson JA noted Huynh v R,[13] this approach is “both authorised and preferred”. (See also in my judgment at [36]-[43].)

    13. [2024] NSWCCA 61 at [15], referring to Wiggins v R [2010] NSWCCA 30 at [3]-[8] (Howie J)

  4. For reasons explained above, it is convenient to impose two aggregate sentences, one in relation to each group of offences. The better course is to backdate the first order to take account of at least part of the presentence custody relevant to that offending, namely approximately 56 days, or about 65% of the additional 87 days spent in custody and not accounted for in the President’s backdating. The first 12-month control order should be backdated to date from 7 August 2023, and will have expired on 6 August 2024.

  5. The second 2-year control order will then have commenced on 7 August 2024, and will terminate on 6 August 2026. However, to maintain the President’s intention that the appellant serve 18 months in the community, the non-parole period of the second control order should only be six months.

  6. Whilst accepting that this outcome was available, counsel for the Director submitted that “the variation of the statutory ratio to such a degree … does not adequately reflect the objective seriousness of those offences”. [14] Thus, the balance of term of the sentence not only exceeds one-third of the non-parole period, but is in fact three times the non-parole period.

    14. Tcpt, 4 February 2025, p 35(23).

  7. Undoubtedly that consequence requires a finding of special circumstances and an explanation. Although such a finding is less common now that aggregate sentences are available, prior to the introduction of that facility by s 53A of the Sentencing Procedure Act, the practice was far more common than it is now. Thus, where an offender was being sentenced for a number of offences, a non-parole period was fixed only in relation to the last offence. In order to give effect to the underlying purpose of s 44(2), the court would fix a non-parole period on the last sentence which would provide for a period of supervision in the community on parole of approximately 25% of the overall sentence period. To achieve that outcome, it was necessary to make a finding of special circumstances and that could be the only reason for such a finding. Further, unless the final sentence was significantly longer than the other sentences, and where there was a significant element of accumulation, a similar disparity to that which arises in the present case could result.

  8. In the present case, the purpose of the lengthy period of the second aggregate control order to be served in the community is designed to achieve the same result as that achieved by the President’s order, namely that 50% of the total period would be served in custody and 50% under supervision in the community.

  9. It is also necessary, pursuant to s 45(2) of the Sentencing Procedure Act, to identify and record the reason for not fixing a non-parole period in relation to the first aggregate control order. The reason is straight forward: it is intended that the whole of that period be served in detention, as in fact it has been. The structure of the dual orders is to provide for release to the community on supervision only during the second order.

Orders

  1. For these reasons, and in order that steps could be taken as necessary to prepare for the appellant’s release, the following orders were made at the conclusion of the hearing on Tuesday, 4 February 2025:

  1. Set aside the aggregate sentence imposed by the President of the Children’s Court on 18 March 2024.

  2. In relation to items 1-10 in the Table of Offences (Ex 3), being charges H92305772-1; H75536405-1; H75536405-4; H91294360-1; H294576097-1; H294576097-2; H76622361-1; H92576818-1; H76571659-1 and H166600402-1, impose a fixed term aggregate control order for a period of 12 months to commence on 7 August 2023.

  3. In relation to items 11-19 in the Table of Offences (Ex 3), being charges H97102516-4; H97102516-5; H81303581-2; H78470623-10; H78470623-11; H78470623-12; H417455894-1; H417455894-5 and H94918746-1, impose an aggregate control order for a period of 2 years to commence on 7 August 2024, expiring on 6 August 2026, with a non-parole period of 6 months, expiring on 6 February 2025.

  4. List the matter for delivery of reasons at 10:00am on Thursday 6 February 2025.

These are the reserved reasons.

  1. As explained above, this not being a civil proceeding, the filing of a summons was unnecessary and inappropriate. The Court makes the following additional order:

  1. Dismiss the summons filed on 30 October 2024.

**********

Endnotes

Amendments

07 February 2025 - Par 13 - change Prosecution to Prosecutions.

10 July 2025 - Footnote numbering corrected.

Decision last updated: 10 July 2025

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Huynh v The King [2024] NSWCCA 61
JH v The Queen [2019] NSWSC 192
RC v Director of Public Prosecutions [2016] NSWSC 665