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R v An (No 2)

R v An (No 2)

Case [2015] NSWSC 308 13 March 2015

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Supreme Court

New South Wales

Medium Neutral Citation: R v AN (No 2) [2015] NSWSC 308
Hearing dates: 13 March 2015
Date of orders: 13 March 2015
Decision date: 13 March 2015
Jurisdiction: Common Law
Before: Hall J
Decision:
Order made pursuant to s 19(1) and 19(3) of the Children (Criminal Proceedings) Act 1987 that the offender serve his non-parole period as a juvenile offender until the day upon which he attains the age of twenty-one years.

Catchwords: CRIMINAL LAW – sentencing – manslaughter – juvenile offender – whether there were circumstances falling within the provisions of s 19(4)(b) and/or (c) Children (Criminal Proceedings) Act 1987 which would warrant an order that the offender should remain in juvenile detention – evidence furnished by Juvenile Justice supportive of finding of special circumstances – offender had special education and therapeutic needs – desirable for order to be made under s 19 – order made that offender serve his non-parole period as a juvenile offender until he turns 21
Legislation Cited: Children (Criminal Proceedings) Act 1987
Category: Sentence
Parties: Regina (Crown)
AN (Offender)
Representation:
Counsel:
P Leask (Crown)
J Spencer (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
John B Hajje & Associates (Offender)

File Number(s): 2011/333568
Publication restriction: Non-Publication order in relation to the name of the Offender and all under-age witnesses

Judgment

On 19 December 2014 I delivered Remarks Sn sentence, citation R v AN (2014) NSWSC 1879, in which at paragraph [100] I, in effect, reserved the question of whether an order should be made under s 19 of the Children (Criminal Proceedings) Act 1987.
The proceedings were listed this morning for the purposes of dealing with an application for an order under that section.
Since the remarks on sentence a report from Juvenile Justice has been produced dated 16 February 2015 which became Exhibit “F” in the sentence proceedings. The report was prepared by Stefanie Wong and Sarah Abusharif of Juvenile Justice NSW.
Mr Spencer of counsel on behalf of the offender has submitted that the report provides an evidentiary basis for the making of an order under s 19(4)(b) of the Act. Whilst he acknowledged that the report does not expressly deal with the availability of educational programmes of the quality and nature referred to in Exhibit F in adult correctional institutions, he submitted that the evidence otherwise strongly supports the application and that the omission in the report to address the lastmentioned matter does not stand in the way of the making of an order for the offender’s continued detention in a juvenile detention centre.
The Crown has in effect submitted that the above report is relevant to issues arising under s 19(4) and that the order sought may be made given that the evidentiary material is now supportive of the application and, further, that an inference can be drawn that the equivalent is not available in such an adult institution.
The authors of Exhibit F interviewed the offender on three occasions, 6 January 2015, 28 January…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v An (No 2)

Details

AGLC: R v An (No 2) [2015] NSWSC 308
Case: [2015] NSWSC 308
Decision Date: 13 March 2015

CaseChat Overview and Summary

The appeal in this case arose from a conviction for manslaughter of a juvenile offender, An. The issue before the court was whether there were circumstances warranting an order under s 19(4)(b) and/or (c) of the Children (Criminal Proceedings) Act 1987, that the offender should remain in juvenile detention until the age of 21. The central legal issue was whether the special circumstances outlined in the evidence provided by Juvenile Justice were sufficient to warrant such an order, given the offender's special education and therapeutic needs.

The court considered the evidence from Juvenile Justice, which indicated that the offender had unique educational and therapeutic needs that would be best addressed in a juvenile detention setting. This evidence was deemed supportive of the finding that special circumstances existed, as required by the legislation. The court also noted the desirability of making such an order, given the benefits to the offender's rehabilitation and the protection of the community. The offender's age and the nature of the offence were also taken into account in determining the appropriate sentence.

Consequently, the court found that there were indeed special circumstances warranting an order under s 19(4)(b) and/or (c) of the Act. The court made an order that the offender should serve his non-parole period as a juvenile offender until he turned 21. This decision was based on the evidence and considerations outlined above, and aimed to provide the best outcome for both the offender and the community.

Orders