R v AR [2022] NSWCCA 5

R v AR [2022] NSWCCA 5

When a serious children's indictable offence is dealt with 'according to law' in the District Court, s 14(2) removes the prohibition against recording a conviction for a child under 16, but does not provide discretion. A Community Correction Order cannot be made unless a conviction is formally recorded; withdrawal of conviction is contrary to statutory requirement under s 8 of the Crimes (Sentencing Procedure) Act.

Jurisdiction
Australia
Judgment Date
01 February 2022
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Decision
Outcome
Appeal allowed; cross-appeal dismissed
Legal Topics
['sentencing of Child Offenders' 'community Correction Orders' 'recording of Conviction' 'statutory Interpretation']
['criminal Law' 'sentencing'] ['sentencing of Child Offenders' 'community Correction Orders' 'recording of Conviction' 'statutory Interpretation']

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal Decision

Legal Issues

  1. 1 ['Whether s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) conferred power to reopen sentencing decision' 'Whether the District Court had discretion to refrain from recording a conviction when imposing a Community Correction Order' 'Interpretation of s 14 of the Children (Criminal Proceedings) Act 1987 (NSW)' 'Validity of Community Correction Order without conviction']

Ratio Decidendi

When a serious children's indictable offence is dealt with 'according to law' in the District Court, s 14(2) removes the prohibition against recording a conviction for a child under 16, but does not provide discretion. A Community Correction Order cannot be made unless a conviction is formally recorded; withdrawal of conviction is contrary to statutory requirement under s 8 of the Crimes (Sentencing Procedure) Act.

Court Disposition

Appeal allowed; cross-appeal dismissed

Orders

  • ['Appeal allowed.' 'Vacate the order of Grant DCJ made 24 March 2021 that no conviction be recorded for aggravated take and detain.' 'Confirm the order made in respect of the offence on 18 February 2021.' 'Leave granted for cross-appeal and amendment.' "Respondent's cross-appeal against sentence dismissed."]