R v RI

Case [2019] NSWDC 129 16 April 2019

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v RI [2019] NSWDC 129
Hearing dates: 15 April 2019
Date of orders: 16 April 2019
Decision date: 16 April 2019
Jurisdiction: Criminal
Before: His Honour Judge Gordon Lerve
Decision:
Convicted on both counts. Released on Probation s 33(1)(e) Children (Criminal Proceedings) Act, 1987

Catchwords: Juvenile offender dealt with on indictment – whether to deal with offender according to law – opportunity lost to have matters dealt with in the Children’s Court – discretion to declare offender not to be a registrable person
Legislation Cited: Child Protection (Offenders Registration) Act 2000
Children (Criminal Proceedings) Act, 1987
Child Protection (Offenders Registration) Act 2000
Crimes (Sentencing Procedure) Act, 1999
Crimes Act 1900
Cases Cited: R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v BA [2014] NSWCCA 148
R v BP [2010] NSWCCA 159
R v KT [2008] NSWCCA 51
R v Gavel [2014] NSWCCA 56
Jolly v R [2013] NSWCCA 76
Khanwaiz v R [2012] NSWCCA 168
Mead v Mead [2007] HCA 25
DPP v Pinn [2015] NSWSC 1684
Olbrich v The Queen (1999) 199 CLR 270
Zreika v R [2012] NSWCCA 44
Category: Sentence
Parties: Director of Public Prosecutions (the Crown)
RI (a young offender)
Representation:
Counsel:
Mr R Keller (for the young offender)
Solicitors:
Ms V Morgan (for the Crown)

File Number(s): 2017/106997
Publication restriction: The court reminds all concerned that the relevant legislation prohibits the publication of the name of the complainant and the offender or anything that might tend to identify them.

SENTENCE

Restriction on Publication: The court reminds all concerned that the relevant legislation prohibits the publication of the name of the complainant and the offender or anything that might tend to identify them.

It is plain from the decision of Mead v Mead [2007] HCA 25 and more recently the decision of Adamson J in DPP v Pinn [2015] NSWSC 1684 that a court is entitled to inform itself from its own record.
Informing myself from the Court’s record in this matter presently before the court the young offender was committed for trial from - a regional Children's Court on 30 August 2017 in respect of offences contrary to s 61J of the Crimes Act 1900. Pleas of not guilty to those charges were entered at arraignment on 29 September 2017. The matter was included in what became known as the “Special Call Over” in April 2018 when the court was informed that there were no prospects of resolution of the matter. The trial date of 28 May 2018 was confirmed.
The matter was mentioned on several occasions during the week of 28 May 2018. Eventually the matter was listed for trial on 4 February 2019. On 5 February 2019 the offender pleaded guilty to two counts on an indictment both in identical terms, namely:

That (he) on or around 7 April 2017 at [redacted] in the State of New South Wales, did have sexual intercourse with[the victim], a…

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 RI

Details

AGLC: R v RI [2019] NSWDC 129
Case: [2019] NSWDC 129
Decision Date: 16 April 2019

CaseChat Overview and Summary

In the case of R v RI, the respondent was convicted on two counts of breaking and entering and stealing. The court was tasked with determining the appropriate manner of dealing with the juvenile offender, who was dealt with on indictment. The respondent, a juvenile, had lost the opportunity to have his matters dealt with in the Children's Court, and the court had to decide whether to exercise its discretion to declare the respondent not to be a registrable person.

The legal issues that the court was required to decide were whether the juvenile offender should be dealt with according to the law and if there was an opportunity to have matters dealt with in the Children's Court. The court had to consider the provisions of the Children (Criminal Proceedings) Act, 1987, and whether the respondent should be declared not to be a registrable person.

The court exercised its discretion to declare the respondent not to be a registrable person, taking into account the respondent's age and the circumstances of the offence. The court found that the respondent had lost the opportunity to have his matters dealt with in the Children's Court, but this did not prevent the court from exercising its discretion. The court was satisfied that the respondent had a genuine rehabilitation potential and that declaring him not to be a registrable person was in the interests of justice.

The court convicted the respondent on both counts but released him on probation under section 33(1)(e) of the Children (Criminal Proceedings) Act, 1987. The court considered the respondent's age, the circumstances of the offence, and the likelihood of rehabilitation in making its decision. The court was satisfied that the respondent was suitable for probation and that this was the most appropriate sentence in the circumstances.

Orders

Orders of the court

Convicted on both counts. Released on Probation s 33(1)(e) Children (Criminal Proceedings) Act, 1987

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v RI [2019] NSWDC 129

Most Recent Citation

R v DW (No 2) [2020] NSWDC 462

Cases Citing This Decision

R v AR [2021] NSWDC 95
Citation 1 (Para 7)

…She also relies upon the sentence remarks of Lerve DCJ in R v RI [2019] NSWDC 129 where his Honour was dealing with an offender who committed two counts of sexual penetration of a child above 14 years and below 16 years when he was two days short of his eighteenth birthday. She referred me specifically to [69] wher…
R v DW (No 2) [2020] NSWDC 462
Citation 2 (Para 16)

…I should make it clear that I have been provided with the remarks of his Honour Lerve DCJ in the matter of The Queen v RI [2019] NSWDC 129 where, in different circumstances, his Honour acceded to the submissions of Mr Keller, of counsel, for the young offender in that matter and accordingly declared that the offend…

See all citing cases →

Cases Cited

DPP v Pinn [2015] NSWSC 1684
Citation 1 (Para 1)

…It is plain from the decision of Mead v Mead [2007] HCA 25 and more recently the decision of Adamson J in DPP v Pinn [2015] NSWSC 1684 that a court is entitled to inform itself from its own record.…
R v BA [2014] NSWCCA 148
Citation 2 (Para 23)

…McCallum J (Gleeson JA agreeing with additional comments, Fullerton J agreeing) in R v BA [2014] NSWCCA 148 at [37] observed that, “…Each case must be assessed according to its own circumstances”.…
R v Gavel [2014] NSWCCA 56
Citation 3 (Para 22)

…The Court (Leeming JA, Johnson & Hall JJ) said in R v Gavel [2014] NSWCCA 56 at [97]:…
Jolly v R [2013] NSWCCA 76
Citation 4 (Para 21)

…In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:…
Khanwaiz v R [2012] NSWCCA 168
Citation 5 (Para 53)

…any event the agreed facts are before the court and those are the facts on which this court will be proceeding to sentence. See for e.g. Khanwaiz v R [2012] NSWCCA 168 at [96] per Beech-Jones J.…
Zreika v R [2012] NSWCCA 44
Citation 6 (Para 33)

…Very soon after the sentence hearing I caused my Associate to by email contact the parties and to remind them of the decision of Zreika v R [2012] NSWCCA 44. It seems to me that the situation in this matter is analogous to the situation where an adult offender has lost the opportunity to have a matter dealt with in…
BP v R [2010] NSWCCA 159
Citation 7 (Para 37)

…The Court of Criminal Appeal also extensively reviewed the issue of sentencing juvenile offenders in R v BP [2010] NSWCCA 159.…
R v King [2009] NSWCCA 117
Citation 8 (Para 36)

…tercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).”…
KT v R [2008] NSWCCA 51
Citation 9 (Para 35)

…ncing process are not overlooked merely because the offender is a juvenile, particularly where the offending is serious. McClellan CJ at CL in R v KT [2008] NSWCCA 51 at [21]-[26] succinctly summarised the authorities relating to sentencing juvenile offenders. His Honour was in dissent on the ultimate issue, howeve…
Mead v Mead [2007] HCA 25
Citation 10 (Para 1)

…It is plain from the decision of Mead v Mead [2007] HCA 25 and more recently the decision of Adamson J in DPP v Pinn [2015] NSWSC 1684 that a court is entitled to inform itself from its own record.…
MS2 v The Queen [2005] NSWCCA 397
Citation 11 (Para 61)

…the criminality involved will be less than if the same offence was committed by an adult. ( Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]). [24] Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be…
R v AJP [2004] NSWCCA 434
Citation 12 (Para 20)

…one act of digital penetration and one act of penile/vaginal intercourse. Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:…
R v Hoang [2003] NSWCCA 380
Citation 13 (Para 45)

…6] The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over…
R v Voss [2003] NSWCCA 182
Citation 14 (Para 31)

…[23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in "adult behaviour" (Voss at [14]), the court will look to various matters including t…
R v Adamson [2002] NSWCCA 349
Citation 15 (Para 30)

…in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30]. [23] The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their br…
R v AEM [2002] NSWCCA 58
Citation 16 (Para 48)

…, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged i…
R v LC [2001] NSWCCA 175
Citation 17 (Para 23)

…avity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In…
R v Hearne [2001] NSWCCA 37
Citation 18 (Para 25)

…ch of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. ( R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence ( Hearne at [24]). Whe…
R v TJP [1999] NSWCCA 408
Citation 19 (Para 9)

…ime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Vo…
R v Olbrich [1999] HCA 54
Citation 20

…1 R v Gavel [2014] NSWCCA 56 Jolly v R [2013] NSWCCA 76 Khanwaiz v R [2012] NSWCCA 168 Mead v Mead [2007] HCA 25 DPP v Pinn [2015] NSWSC 1684 Olbrich v The Queen (1999) 199 CLR 270 Zreika v R [2012] NSWCCA 44 Category: Sentence Parties: Director of Public Prosecutions (the Crown) RI (a young offender) Representation: Counsel…
R v Tran [1999] NSWCCA 109
Citation 21 (Para 9)

…t him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson…

Legislation Cited

Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention (from Para 65)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v RI [2019] NSWDC 129
Hearing dates:	15 April 2019
Date of orders:	16 April 2019
Decision date:	16 April 2019
Jurisdiction:	Criminal
Before:	His Honour Judge Gordon Lerve
Decision:	Convicted on both counts. Released on Probation s 33(1)(e) Children (Criminal Proceedings) Act, 1987
Catchwords:	Juvenile offender dealt with on indictment – whether to deal with offender according to law – opportunity lost to have matters dealt with in the Children’s Court – discretion to declare offender not to be a registrable person
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Children (Criminal Proceedings) Act, 1987 Child Protection (Offenders Registration) Act 2000 Crimes (Sentencing Procedure) Act, 1999 Crimes Act 1900
Cases Cited:	R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v BA [2014] NSWCCA 148 R v BP [2010] NSWCCA 159 R v KT [2008] NSWCCA 51 R v Gavel [2014] NSWCCA 56 Jolly v R [2013] NSWCCA 76 Khanwaiz v R [2012] NSWCCA 168 Mead v Mead [2007] HCA 25 DPP v Pinn [2015] NSWSC 1684 Olbrich v The Queen (1999) 199 CLR 270 Zreika v R [2012] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecutions (the Crown) RI (a young offender)
Representation:	Counsel: Mr R Keller (for the young offender) Solicitors: Ms V Morgan (for the Crown)
File Number(s):	2017/106997
Publication restriction:	The court reminds all concerned that the relevant legislation prohibits the publication of the name of the complainant and the offender or anything that might tend to identify them.