Automatic language translation
Our website uses an automatic service to translate our content into different languages. These translations should be used as a guide only. See our Accessibility page for further information.
Children's Court New South Wales
CLN 2023
CLN 2 - December 2023
Supreme Court of New South Wales
R v KS (No 2) [2023] NSWSC 1475
CRIME — Murder — Where the young person is a 16 year-old child — Where the young person has pleaded guilty to murder — Where there is an issue as to the basis of murder — Whether the young person is to be sentenced on the basis of an intention to kill or an intention to inflict grievous bodily harm — Where the prosecution relies upon the Electronically Recorded Interview (ERISP) as part of the evidence supporting an intention to kill — Where the ERISP contains an admission of an intention to kill — Whether the custody manager “assisted” the young person to obtain legal advice — Whether the support person fulfilled that role appropriately — Something more required than a “cardboard cut-out” — Whether the young person was essentially “left to his own devices”— Whether there was an obligation on the police to obtain consent from the young person as to the nominated support person — Whether the evidence was obtained improperly or in contravention of an Australian law — Having regard to the circumstances in which the admission was made, whether it would be unfair to use the evidence — Strict protections afforded by LEPRA provisions — ERISP not admissible
Supreme Court of Victoria
Director of Public Prosecutions v PM [2023] VSC 560 (PDF, 900.1 KB)
CRIMINAL LAW – Trial by judge alone – Murder – Complicity – Deceased died as a result of multiple stab wounds during group attack – CCTV of attack available – Accused 13 at time of alleged offending – Accused did not stab the deceased but participated in the attack by kicking and stomping – Trial severed from co-accused – Presumption of doli incapax – Whether accused knew his conduct was seriously wrong in a moral sense – Consideration of moral development of a child – Expert psychiatric and psychological evidence – RP v The Queen (2016) 259 CLR 641 – BDO v The Queen [2023] HCA 16 – Crimes Act 1958 (Vic) s 324 – Children, Youth and Families Act 2005 (Vic) s 534.
NSW Court of Criminal Appeal
CRIMES — appeals — appeal against conviction — sexual intercourse with child under 10 years — applicant 13 years old at time of offending — whether a miscarriage of justice was occasioned by trial judge’s failure to give a “lies direction” or “Zoneff direction” in response to Crown Prosecutor’s submissions — Crown Prosecutor’s reliance on applicant’s silence and alleged lie to rebut the presumption of doli incapax involved appeal to consciousness of guilt reasoning — to ensure a fair trial it was necessary for trial judge to have given an Edwards or Zoneff direction — majority verdict — Jury Act 1977 (NSW), s 55F(2)(b) — whether it was open to trial judge to conclude that the preconditions for taking a majority verdict were satisfied — in the circumstances it was open to trial judge to be satisfied of the requirements of s 55(2)(b) — leave to appeal allowed — appeal allowed — whether retrial or acquittal should be entered — notwithstanding the Crown having a reasonably strong case the cause of the error favours entering an acquittal — applicant acquitted
CRIME — Appeals — Appeal against sentence — Sentencing of children — Relevant principles of sentencing — Where 15-year-old commits serious offence of aggravated robbery causing grievous bodily harm — Where moral culpability reduced as a result of a young age and a deprived and disadvantaged background — Where the weight afforded general deterrence moderated — Strong evidence of rehabilitation — Where judge erred in failing to have regard to youth in assessing moral culpability — Where judge erred in failing to have regard to youth in assessing the weight to be afforded to general deterrence — Emphasis on rehabilitation — Errors established — Resentence
ZXT v R (A Pseudonym) [2023] NSWCCA 222
APPEALS — CRIMINAL LAW — appeal against sentence — reckless wounding in company — Children’s Court — young person — control order — whether control order ought be suspended — re-sentence — whether lesser sentence is warranted
CRIME – appeals – appeals against sentence – offence of doing an act in preparation for, or planning, a terrorist act – whether sentencing judge erred in determining objective seriousness – large body of material addressing offender’s youth, lack of insight, mental illness, remorse and prospect of rehabilitation – whether error in failing to make findings in respect of offender’s subjective case – whether sentence manifestly excessive – significance for purpose of resentencing of harsher conditions of imprisonment than could have been foreseen – significance of subsequently enacted legislation restricting availability of parole – appeal allowed and offender resentenced
CRIME – appeals – appeal against sentence – sentencing of children – 15-year-old commits serious offence of aggravated robbery causing grievous bodily harm – whether sentencing judge erred in failing to have regard to youth in assessing moral culpability and weight afforded to general deterrence – errors established – where same sentencing judge sentenced co-offender – where same errors were established and co-offender re-sentenced on appeal – whether re-sentence imposed upon co-offender gives rise to a justifiable sense of grievance – issue of parity warrants re-sentence – appeal upheld – re-sentence
District Court of New South Wales
Sentence – aggravated sexual assault by an object – serious children's indictable offence-sentencing according to law – s6 Children (Criminal Proceedings) Act 1987 – production of child abuse material-filming of dry humping-Snapchat – bullying at school – trauma of abuse – child offender – rehabilitation – immaturity – remorse – good character – excellent prospects of rehabilitation – Community Correction Order – not to be treated as a registrable person.
Children's Court of New South Wales
CHILDREN – Criminal Law – Youth Koori Court – Section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) – Best interests of Child
CHILDREN - Sexual assault - Applicability of Crimes Act 1900 (NSW) s 80AB - Alternative verdicts in the Children’s Court/Local Court
CHILDREN – Criminal Law – Voir Dire – Admissibility of ERISP
Department of Communities and Justice (DCJ) and the Dalton Tomkins Children [2023] NSWChC 10
CHILDREN – Care and Protection – Funded Service Providers – unsatisfactory case management – subpoena inspection – best practice – Children’s Court Clinic recommendations – follow up – realistic possibility of restoration
Department of Communities and Justice (DCJ) and Katie [2023] NSWChC 11
CHILDREN – Care and Protection – exceptional circumstances – costs
Department of Communities and Justice (DCJ) and Skyla [2023] NSWChC 12
CHILDREN – Care and Protection – Establishment – Availability of parent – No parent available
CHILDREN – Criminal Law – Doli incapax
Department of Communities and Justice (DCJ) and Layla, Jasmine and Zara [2023] NSWChC 14
CHILDREN – Care and protection – costs – exceptional circumstances – scope of care proceedings
Department of Communities and Justice (DCJ) and May, June and Roy [2023] NSWChC
CHILDREN - Care and Protection – Section 90 - Interim Order – Court has power to make an interim order prior to leave being granted – Jurisdiction – Cannot rescind or vary an order that is not in existence – Unacceptable risk is not determinative of best interests – Determination of ‘best interests’ – Consideration of ‘least intrusiveness’ and ‘placement principles’
Articles
Gordon Lerve, ‘Sentencing Juvenile Offenders on Indictment’ (2023) 1(2) Judicial Quarterly Review 31-40 (PDF, 2.2 MB)
CLN 1 – June 2023
High Court of Australia
Criminal Law – Rape – Appeal against conviction – Capacity – Where appellant charged with 15 counts of rape and one count of indecent treatment of child under 16 – Where conceded or reasonable doubt as to whether appellant over 14 years of age for five counts – Where Criminal Code (Qld), s 29(2) states presumption of incapacity of person under 14 years rebuttable by evidence of capacity to know person ought not do the act – Where presumption of incapacity rebuttable by evidence of knowledge of moral wrongness at common law applying RP v The Queen (2016) 259 CLR 641 – Whether what is required by s 29(2) to rebut presumption of incapacity equated with what is required by common law – Whether reasonable doubt as to whether appellant over 14 years of age – Whether evidence of capacity sufficient to rebut presumption where applied to counts of which appellant convicted – Whether retrial should be ordered if evidence insufficient to rebut presumption of incapacity.
Supreme Court of NSW
BAIL — Aboriginal child — Unacceptable risk — Whether the proposed conditions mitigate risk — Whether Youth Justice can supervise a child on bail in the community where the child has pleaded not guilty to the offence — Conditional bail granted
BAIL – Aboriginal child – whether proposed conditions mitigate risk – whether Youth Justice can (should) supervise child where the child has pleaded not guilty – the valuable resource of Youth Justice staff – conditional bail granted
BAIL — Aboriginal child — Multiple offences — Whether the unacceptable risks can be ameliorated by the proposed conditions — Where Youth Justice can provide “bail support” but not “bail supervision” because child has pleaded not guilty — Where a number of service providers are prepared to actively engage with the child — Multiple underlying issues that need to be addressed — Where it is necessary to ensure that a suitably qualified individual coordinates the various services — Bail granted
DN v Department of Communities and Justice [2023] NSWSC 595
CHILD WELFARE — Jurisdiction — Children’s Court of New South Wales — Care order — Variation —Where children outside of New South Wales
NSW Court of Appeal
Burton v Director of Public Prosecutions [2022] NSWCA 242
CONSTITUTIONAL LAW — Commonwealth Constitution — Implied freedom of political communication — Section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) — Section 105 prohibits the publication or broadcasting of the name of a child only where connected to care proceedings or procedures under the State’s child welfare system — Relevant child or young person may consent to publication or broadcasting from 16 years of age onwards — Section 105 imposes a not insignificant but limited burden on the implied freedom — Purpose of s 105 of protecting privacy is legitimate — Burden on the freedom is justified — Section 105 not invalid for breach of the implied freedom
NSW Court of Criminal Appeal
CRIME – appeal against sentence – robbery whilst armed – robbery upon service station attendant – question of misapplication of guideline judgment – question of the parity principle where the co-offender was sentence in the Children’s Court – question of manifest excess – question of the distinction between aggravating factors and the assessment of objective gravity
CRIME – appeal – sentence appeal – whether sentence imposed was manifestly excessive – whether sentencing judge failed to take into account a causal connection between youth or immaturity and offending – whether sentencing judge failed to provide sufficient reasons for finding of no causal connection between youth or immaturity and offending – aggravated sexual assault – aggravated break and enter and commit felony – significant delay between offending and sentencing – applicant’s youth at time of offending appreciated by sentencing judge – sentencing judge entitled to deal with issue of youth in the manner he did – indicative sentences not outside reasonable range – aggregate sentence not unreasonable or unjust – appeal dismissed.
SENTENCING — appeal against sentence — whether sentencing judge failed to make findings as to the applicant’s reduced moral culpability — whether sentencing judge failed to apply correct principles concerning the sentencing of a juvenile —co-offenders — disparity between sentences — co-offenders sentenced by same sentencing judge — appeal dismissed
Commissioner of Police v TM [2023] NSWCCA 75
CRIME – appeal and review – juvenile offender convicted of three counts of possession of child abuse material under Crimes Act 1900 (NSW) s 91H(2) – whether offender a “registrable person” under s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW) – whether exception under s 3A(2)(c)(ii) applies – meaning of “arising from the same incident” – interaction of s 3(3) and s 3A(5) – whether possession of child abuse material is an offence “committed against” a person – primary judge erred in “disapplying” s 3(3) to s 3A(5)
STATUTORY INTERPRETATION – departure from literal meaning by primary judge – inadvertence by legislature – desire to avoid “incoherent results” – that a provision has unfair results an insufficient justification for entirely refusing to apply statutory text – limited qualification on operation of provision sufficient to avoid incoherence
STATUTORY INTERPRETATION – amendment and repeal – references to amended or repealed statute – Interpretation Act 1987 (NSW) s 68 – reference in earlier version of Child Protection (Offenders Registration) Act 2000 (NSW) s 3A(2)(c)(ii) to Crimes Act 1900 (NSW) s 578B – Crimes Act s 91H and s 578B (repealed) are corresponding provisions for the purposes of Interpretation Act s 68(3)
District Court of NSW
CRIME - sexual intercourse child under 10 - all counts involved fellatio - offender juvenile at the time of offence - precise age of victim and offender in question - pornography addiction
J & T v Department of Communities and Justice [2023] NSWDC 78
CHILD CARE APPEAL – trauma-informed approach to child care appeal brought as of right by parents from decision of the Children’s Court pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 – hearing de novo – findings made in lieu of prior orders – finding pursuant to s 83(5) of the Act that a realistic possibility exists for restoration of the children the subject of the appeal to their parents within a reasonable period – non-acceptance of key aspects of evidence from an expert forensic psychologist relied upon by the Secretary, Department of Communities and Justice – application of the requirements of the Expert Witness Code to the reasoning of expert: UCPR Sch 7, cl 5(c) – new care plan required
Children's Court of NSW
CHILDREN – criminal proceedings – application of s 31(3) Children (Criminal Proceedings) Act 1987 (NSW)
CRIMINAL PROCEDURE – summary disposal – considerations in determining when an indictable offence may not properly be disposed of in a summary manner
STATUTORY INTERPRETATION – meaning of ‘detained’ under s 33A(4) Children (Criminal Proceedings) Act 1987 (NSW) – finding that detained means the period of time detained in a facility under a control order
CHILDREN – criminal proceedings – application of s 31(3) Children (Criminal Proceedings) Act 1987
CRIMINAL PROCEDURE – summary disposal – considerations in determining when an indictable offence may not properly be disposed of in a summary manner
JURISDICTIONAL LIMIT OF CHILDREN’S COURT – statutory interpretation “detained for a continuous period”
CHILDREN – Criminal law – Children’s Court jurisdictional limit
CHILDREN – Criminal law – Youth Koori Court
Department of Communities and Justice (DCJ) and Evie and Grace [2023] NSWChC 1
CHILDREN – Care and Protection – unexplained injuries – assessment of risk – realistic possibility of restoration
Department of Communities and Justice (DCJ) and Harry [2023] NSWChC 5
CHILDREN – Care and Protection – unexplained injuries – assessment of risk – interim contact order
Department of Communities and Justice (CDCJ) and Janet & Xing-fu [2022] NSWChC 7
CHILDREN – Care and Protection – Unacceptable risk – Sexual abuse
CARE AND PROTECTION – Parents in the parental responsibility of the Minister, early intervention.
Re Lucinda Porter (No 2) [2023] NSWChC 2
CHILDREN – Care and Protection – Placement / Kinship Assessment
Last updated:
08 Dec 2023
We acknowledge the traditional owners and custodians of the land on which we work and we pay respect to the Elders, past, present and future.