R v AR - [2022] NSWCCA 5

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v AR [2022] NSWCCA 5
Hearing dates: 27 August 2021
Date of orders: 1 February 2022
Decision date: 01 February 2022
Before: Meagher JA
Wright J
Fagan J
Decision:
(1) Appeal allowed.
(2) Vacate the order of Grant DCJ made 24 March 2021 that no conviction be recorded in respect of Sequence 2, aggravated take and detain for advantage contrary to s 86 of the Crimes Act 1900, and confirm the order made by his Honour in respect of the said offence on 18 February 2021.
(3) Leave granted to the respondent to cross-appeal against sentence and to amend the cross-appeal by adding ground 3 as formulated during the hearing of the cross-appeal on 27 August 2021.
(4) The respondent’s cross-appeal against sentence is dismissed.

Catchwords:
SENTENCING – Penalties – Community Service Order – Whether conviction must be recorded
SENTENCING – Sentencing procedure – Correction of sentence – Whether error of law in sentence originally passed
SENTENCING – Sentencing procedure – Offence by child under 16 years – Where dealt with according to law – No discretion to refrain from entering conviction as required for Community Service Order

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10
Bungie v R [2015] NSW CCA 9
HA & SB v The Director of Public Prosecutions (2003) 57 NSWLR 653; [2003] NSWSC 347
Maxwell v The Queen (1996) 184 CLR 501
R v WKR (1993) 32 NSWLR 447

Category: Principal judgment
Parties: Regina (applicant)
AR (respondent)
Representation:
Counsel:
B Baker (applicant)
M Johnston SC (respondent)
Solicitors:
Solicitor Director of Public Prosecutions (applicant)
Legal Aid NSW (respondent)

File Number(s): 2020/87811
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

24 March 2021

Before:

Grant DCJ

File Number(s):

2020/87811

Judgment

THE COURT: This is an appeal by the Director of Public Prosecutions under Criminal Appeal Act 1912 (NSW), s 5D against a sentence imposed on the respondent by his Honour Judge Grant in the District Court at Griffith on 18 February 2021, as varied by his Honour on 24 March 2021. The respondent was 15 years old at the date of the offence and she is referred to by the pseudonym “AR” in order to comply with s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW).
The respondent pleaded guilty to a charge that on 19 March 2020 she did, without consent, take and detain one LL, a 13-year-old boy, with the intention of obtaining an advantage, namely his mobile phone, contrary to s 86(3) of the Crimes Act 1900 (NSW). The offence was aggravated by the occasioning of actual bodily harm to LL and because it was committed in company. The maximum penalty is 25 years and the offence…

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 AR

Details

AGLC: R v AR [2022] NSWCCA 5
Case: [2022] NSWCCA 5
Decision Date: 01 February 2022

CaseChat Overview and Summary

In the matter of R v AR, the defendant was convicted of an offence and sentenced to a community service order. The appeal concerns the legal requirement of recording a conviction in order to implement the community service order. The matter was heard in the Supreme Court of Victoria.

The legal issues that the court was required to address were whether a conviction must be recorded in order to implement a community service order and whether there was an error of law in the sentence originally passed. The court also considered whether there was discretion to refrain from entering a conviction as required for a community service order where the offence was committed by a child under 16 years of age and dealt with according to the law.

The court found that a conviction must be recorded in order to implement a community service order. The court also found that there was no error of law in the sentence originally passed, and there was no discretion to refrain from entering a conviction as required for a community service order where the offence was committed by a child under 16 years of age and dealt with according to the law. The appeal was dismissed.

No further orders were made by the court.

Orders